Appellant: Scott, Q.C., Mitchell; John Pryde & Co., Edinburgh

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

9 February 2011

The procedural history

[1] The appellant was indicted for trial in the High Court at Glasgow on a charge that on 23 April 2008 he assaulted, robbed and murdered Tracey Scott. The trial proceeded on 6 January 2009 and succeeding days, the appellant being represented by Mr Findlay, Q.C., and junior counsel. On 9 January the Advocate depute declared the Crown case closed. On the following Monday (12 January) Mr Findlay commenced a submission that the appellant had no case to answer. In the course of the discussion which ensued the trial judge (Lord Matthews) indicated that there did not appear to be before the court any evidence that a DNA sample (an analysis of which had been spoken to in evidence) had been taken from the appellant. It emerged that, at an earlier stage in the trial, there had been informal discussion between the Advocate depute and Mr Findlay's junior counsel, with Mr Findlay's agreement, during the course of which it had been indicated that there would be no difficulty in the defence agreeing that the relative DNA sample had been taken from the appellant. In the event, however, no joint minute to that effect had been framed, signed or laid before the jury. The Advocate depute conceded that this had been an error on his part. He sought initially to rely on sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995 to deal with the situation presented.

[2] The trial judge decided that, having regard to the nature of the case and the issues which arose (which by this stage included the possibility of the court's deserting the diet pro loco et tempore), it was appropriate that additional judges join him for disposal of these issues. Lord Carloway and Lady Dorrian duly did. The discussion was resumed before the enlarged bench on 13 January. The Advocate depute renewed his submission in reliance on sections 280 and 281. The court, without calling on counsel for the appellant, rejected that submission. Thereafter the Advocate depute moved the court to desert the diet pro loco et tempore. Counsel for the appellant opposed that motion. The court indicated that the motion would be granted. Lord Carloway and Lady Dorrian then withdrew.

[3] The court having reconvened, the Advocate depute moved it to appoint a further diet on the same indictment in terms of section 81(2) of the 1995 Act. The court then deserted the diet pro loco et tempore and in terms of section 81(2) appointed a further trial diet to proceed on Wednesday 14 January (the following day). No steps were taken at this stage to challenge the decision to desert pro loco et tempore. The second trial then proceeded. In the course of it, in addition to other evidence, evidence was led by the Crown which linked the appellant to the DNA forensically examined. On 21 January the Advocate depute closed the Crown case. A submission of no case to answer was then made on behalf of the appellant. The court repelled that submission. On 23 January the jury unanimously found the appellant guilty as libelled. He was sentenced to life imprisonment, with a punishment part specified at seventeen years.

[4] The appellant sought and obtained leave to appeal against his conviction and sentence. The first ground was that there was insufficient evidence in law identifying the appellant as the perpetrator of the crimes libelled. The second was that no reasonable jury, properly directed, could on the evidence have returned a verdict of guilty. On 11 June 2010 this court refused both these grounds. It continued ground 3 for consideration by a bench of five judges. That ground is that the trial court erred "in allowing the Crown to desert the diet pro loco et tempore simply because of the failure on the part of the Crown to lead evidence crucial to its case".

Submission for the appellant
[5] In advancing her submission in support of this ground of appeal Ms Scott referred to the discussion in Hume at pages 275-6 and 305. In Hume's time desertion of the diet pro loco et tempore was not available once the jury had been sworn to try the case. Where the Crown had failed to move for desertion at the correct time an accused was "entitled to the benefit of that accident" (Campbell, Kelly and Kelly, (1827) Syme 247). Even before the jury was sworn desertion pro loco et tempore was subject to the control of the court (McAtamney or Henry and McAtamney (1867) 5 Irvine 363 at page 366). In more modern times the power of the court to desert pro loco et tempore after evidence had been led had been recognised (Shillinglaw v HM Advocate 1995 SLT 200). Reference was also made to HM Advocate v Fleming 2005 SCCR 324 and McKie v HM Advocate 1997 SCCR 30. In the latter cases both parties were agreed that, in the interests of fairness, the trial could not proceed. Here what had happened was that the Crown, solely as a result of its own fault, had failed to lead evidence which it regarded as material. That was no different from any other failure by it, such as to lead a material witness or to prove a material document. The defence had wished to proceed with the trial but had, wrongly, been denied the opportunity of doing so on the basis of the evidence actually led. The Crown should not have been given the opportunity of starting again and including against the accused evidence which it had failed to lead in the first trial. An accused should not, without good reason, be subjected to "harassment by repeated libels". The decision of the trial court was also contrary to the principle of finality. That court had failed to give due recognition to the fact that what had occurred had been due to error on the part of the prosecutor. The Crown should not be allowed to re-open its case by a back door.

[6] It was recognised that the then accused had had a remedy against the court's desertion pro loco et tempore - namely, by bill of advocation. But the fact that that remedy had not been used did not prevent his appealing after conviction under section 106(1) on the basis that he had suffered a miscarriage of justice. His conviction had been on the same indictment as that before the court when the first trial diet was deserted. There clearly had been a miscarriage if, as was submitted, there was, absent proof of the DNA link, insufficient evidence in law to prove that the appellant was the perpetrator. The evidence was too general and not sufficiently specific to the appellant; at its highest it pointed to the murderer being someone who knew the deceased, who smoked Marlboro cigarettes, was interested in obtaining money from her and who might have 20p coins in his possession after the event. Even if there was a sufficiency in the absence of such proof, the appellant had been "disadvantaged".

Submission for the Crown
[7] The Advocate depute submitted that the trial court was entitled in the interests of justice to desert the trial diet pro loco et tempore. Its decision was consistent with what had been said in Fleming. It was necessary to have regard to the whole circumstances, including the fact that the omission to put the DNA link in evidence had been a genuine oversight by the prosecutor. The evidence had been available; it was simply not spoken to or made the subject of a joint minute read to the jury. There had been no miscarriage of justice unless it could be said that on the basis of the evidence, absent the DNA link to the appellant, he would have been bound to have been acquitted. That could not be said. In any event, standing that evidence had been led about a DNA match, it was unlikely that the absence of proof of the link to the appellant could have been dealt with adequately by directions and accordingly likely that in due course before the case went to the jury a motion to desert pro loco et tempore would, as a matter of fairness to the appellant, have been made and granted.

Discussion
[8] It is a fundamental rule of our criminal procedure that the Crown must lead all the evidence it proposes to lead before it closes its case. The statutory exceptions to that rule - section 268 of the 1995 Act (additional evidence) and section 269 (evidence in replication) are closely circumscribed. A procedural irregularity in relation to any requirement as to proof cannot be excused (section 300A(1) and (7)). In the present case the Advocate depute closed the Crown case without laying before the jury evidence that the DNA sample analysed by the scientists had been taken from the accused. That might have been done, as it was in the subsequent trial, by taking evidence from the relative police officer or by securing agreement on the matter with the defence in the form of a joint minute duly executed and read to the jury. The failure to take either of these steps was an oversight on the part of the Advocate depute. That oversight may have been contributed to by an understanding that the defence had indicated that it was prepared to enter into a joint minute agreeing that matter. But, however that may be, the Crown's error was no different in substance from a failure due to oversight to lead evidence from a material witness or to prove a material document.

[9] Desertion pro loco et tempore is an established and useful procedural disposal but is a course to be followed only in exceptional circumstances (Kerr v HM Advocate 2002 SCCR 273 at para [18]; Renton & Brown - Criminal Procedure, para 18-22). The earlier authorities cited by Ms Scott suggest that such desertion, at least when moved for by the Crown, was originally not available after the jury had been sworn. That restriction no longer applies (Shillinglaw v HM Advocate) but to desert pro loco et tempore, where the difficulty which has arisen is the omission by the Crown timeously to lead evidence on which it intends to found, would be to circumvent the rule that the Crown must lead all its evidence before closing its case. There is no justification, in our view, in such circumstances - even where the charge is a serious one - for giving the Crown a second chance by allowing it to run the trial again. We are unable to support the decision of the trial court to desert pro loco et tempore.

[10] The proper course would have been to allow the trial to proceed. This would have involved the submission of no case to answer being resumed (now on the basis that there was no proof that the sample analysed had been taken from the accused). The Advocate depute's position was that, even without that proof, there was sufficient evidence in law against the accused. Had he persuaded the trial court to that effect, the case would then have gone to the jury on that restricted basis.

[11] There is a suggestion in the trial judge's report that it might have been difficult for the jury who had heard the scientists speak to the match between samples, one of which was described as taken from the accused, to exclude from their minds the notion that that description had not been proved to be accurate. But we see no particular difficulty in directing the jury appropriately. If the defence perceived that in all the circumstances there was a material risk that the accused would not obtain a fair trial, it might have moved for desertion pro loco et tempore. But desertion by the court on that basis ex proprio motu would not, in our view, have been appropriate.

[12] In seeking to persuade us that the appellant had, by reason of the trial court's decision, suffered a miscarriage of justice, Ms Scott submitted that, absent proof of the link between the sample and the appellant, there was insufficient evidence that he was the perpetrator. If that submission was well-founded, the suggested conclusion might well follow. If there was insufficient evidence on the restricted basis, the trial judge would, at the end of a resumed debate, have required to sustain the submission of no case to answer and acquit the accused. However, we are not persuaded that, even on the restricted basis, there was an insufficiency of evidence that the appellant was the perpetrator.

[13] The case against him was circumstantial. The deceased lived alone in a ground floor flat. She had formed a sexual relationship with the appellant who would visit her at that flat. She did not allow strangers into the flat and was careful to lock her door. Both the deceased and the appellant smoked. Her preferred brands were Richmond King Size, Mayfair and Soho, his Marlboro or Marlboro Lights. The deceased received tips at her work, usually in coins. She stored them in large tins in her livingroom. In November or December 2007 (a few months before her death) she told her sister that she had collected about £800 in 20p coins. In early 2008 the appellant was in financial difficulties. His obligations included a debt of about £400 to a workmate, William Traill. The last communication from the deceased to her sister was a text message timed at 1540 on Wednesday 23 April. She was found dead in her flat on Saturday 26 April. Only the Yale lock was engaged, the keys to the flat being in the mortice lock inside. Tins had been left lying open and emptied. Two mugs spotted with blood and containing the dregs of some drink were found near the body. A plastic carrier bag lying near the body contained eleven cigarette ends, ten of the Soho brand and one of the Marlboro brand. In the bathroom the toilet seat had been left up, suggestive of a male visitor. In a plastic carrier bag found near the front door was a bloodstained cushion which a witness said looked like a cushion from the appellant's home. At about 11.00pm on 23 April the appellant made a number of telephone calls to William Traill's mobile phone, but got no response. At about 11.39pm he was filmed by CCTV camera at an Asda supermarket using a Coinstar machine to exchange a large quantity of coins for about £450 in banknotes. The coins included 1,894 20p coins and 1,191 5p coins. The following day the appellant repaid his debt to William Traill.

[14] The above circumstances were, taken together, sufficient in law, in our view, to allow a jury to conclude that the appellant was the perpetrator of these crimes. The evidence was consistent with the deceased having met her death in the latter part of Wednesday 23 April; she sent a text to her sister at 1540 that day; it was her habit at the end of each day to empty into the bin the cigarette ends collected in the plastic bag; that had not been done on 23 April. The evidence pointed to a male perpetrator who had been let into the flat by the deceased and who had shared drinks (possibly coffee) with her. The visitor and the deceased had both smoked, one of the brands used being Marlboro, the appellant's preferred brand. Related to the assault on the deceased was the bloodstained cushion which was associated with the appellant. The perpetrator had stolen a large number of coins. Late that evening the appellant exchanged for notes a significant number of coins at the Asda Coinstar facility. He had endeavoured that evening to contact his creditor, William Traill, inferentially for the purpose of making arrangements for the repayment of his debt, which he in fact repaid the following day. There was evidence that, at the time, the appellant was otherwise in financial difficulties; on the morning of 23 April he did not have enough money to repay his debt to Traill. Additionally, there was evidence that after 23 April the appellant had changed his appearance; a satchel which he was seen to have at the Asda facility disappeared without explanation. In these circumstances, had the first trial proceeded, the Crown case, albeit thinner than it would have been with the DNA link proved, would have gone to the jury for a verdict.

[15] Ms Scott maintained that, in any event, the appellant had been "disadvantaged" by what had occurred. The appellant had been denied the opportunity to go to the jury on the restricted case. But, if the appellant and his legal representatives wished to preserve that opportunity, the facility for doing so lay in their own hands. As Ms Scott accepted, the appellant could have immediately advocated to the High Court the decision of the trial court to desert pro loco et tempore. That is an established and well-recognised remedy available to a person aggrieved by such a decision (Renton & Brown: Criminal Procedure 33-20/22.1). As is clear from HM Advocate v Khan 1997 SCCR 100, the remedy is available notwithstanding that the jurors have been discharged by the trial court.

[16] It is inappropriate to speculate why this course was not taken. But experienced counsel had just conducted a defence in the course of which he was arguing that, on the assumption that there was an established DNA link, there was insufficient evidence in law against his client. He renewed that submission in the course of the second trial. Albeit that submission was unsuccessful (as was a subsequent appeal on that matter) it was a matter of judgment for counsel as to how important or unimportant in the whole context of the case the DNA link was. But a decision having been made to submit, without challenge, to a second trial, it cannot now be said that the appellant by reason of the decision to desert pro loco et tempore suffered a miscarriage of justice.

[17] In these circumstances this ground of appeal against conviction must be refused.

[18] In September 2010 the appellant lodged a devolution minute founded upon the decision of the Court of Human Rights in Salduz v Turkey [2008] ECHR 1542. On 22 September 2010, there was lodged on his behalf a proposed additional ground of appeal based on that decision. On 13 October 2010, at a procedural hearing, there was discussion as to how that matter should be handled. The court indicated that an appropriate way forward would be for that proposed additional ground to be withdrawn, without prejudice to the appellant seeking leave to amend his grounds of appeal following the issue of the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate. That the appellant agreed to do. In these circumstances Ms Scott invited us, in the event of our refusing the present ground of appeal, to continue the appeal against conviction pending a relative procedural hearing before three judges. That we are prepared to do.