Appellant: Shead; Paterson Bell (for Penmans, Glasgow)

Respondent: Brodie QC, AD; Crown Agent

15 March 2011

[1] The appellant's appeal against conviction was refused by a differently constituted court on 8 December 2010. This is an application for leave to appeal to the Supreme Court of the United Kingdom against a decision of 3 September 2010 to refuse leave to amend the grounds of appeal. It came before the court on 15 March 2011 having been made in late February.

[2] On 4 August 2009, at the High Court in Glasgow, the appellant was convicted of the attempted murder of a Mr Walker in Rutherglen on 20 October 2008. The assault had been carried out by masked men. In the course of the attack, Mr Walker had managed to pull the balaclava from one of the assailants. A taping from the inside of the balaclava revealed the DNA profile of the appellant. No other DNA suitable for comparison purposes was found. In addition, both Mr Walker and his girlfriend identified the appellant as the principal attacker. This evidence, if accepted, as it must have been, by the jury, clearly warranted the guilty verdict.

[3] When interviewed by the police, the appellant had been asked if he had any explanation for the finding of the DNA on the balaclava. He said that he did not. When asked if he had ever worn a balaclava of the same description, he said that he did not know, but he might have worn one at Hallowe'en. He might have worn one at primary school but not recently. The trial judge directed the jury that, if they found that the appellant had given no explanation as to how his DNA had come to be inside the balaclava or rejected the explanation which he gave to the police, they could infer that his DNA was there because he had been wearing the mask at the time of the attack.

[4] The judge directed the jury that the DNA evidence on its own was sufficient for a conviction. An appeal was taken on the basis that this was a misdirection, as was an alleged direction that the jury could draw an inference of guilt "from what the accused said at interview". The court, in refusing the appeal on the latter ground, explained that such a direction had not been given. What the trial judge had said was that an inference could be drawn if any innocent explanation tendered by the appellant at interview were rejected.

[5] The appellant lodged his Note of Appeal on 23 November 2009. On 30 August 2010, over a year after the conviction, the appellant sought leave to amend his grounds of appeal to include a point based upon the absence of an opportunity to consult with a solicitor prior to the interview. It was accepted in the ground that the Crown had not relied upon the interview, but it was maintained that the trial judge's reference to it in his directions had, in some unspecified manner, resulted in an unfair trial. An associated devolution minute was also lodged.

[6] The appellant's trial took place after Salduz v Turkey (2008) 49 EHRR 421 but before McLean v HM Advocate 2010 SCCR 59. Yet no objection had been taken to the admissibility of the interview. No devolution issue was raised, as it could have been, during the trial proceedings in terms of the Act of Adjournal (Criminal Procedure Rules) 1996 (rule 40.2). That is not at all surprising. The interview at least contained some explanation about how the appellant's DNA might have got onto the balaclava. The appellant elected not to give any other explanation and did not give evidence.

[7] When the court came to consider the application to amend, it had before it first an attempt by the appellant to raise a devolution issue in the course of appellate proceedings, when the point ought, if it were to be taken, to have been advanced prior to the trial. No cause was stated in terms of the Act of Adjournal (rule 40.5) as to why a devolution issue should be raised at this late stage. On this basis alone, the application fell to be refused.

[8] The application to add grounds of appeal had been made many months after the statutory time limit for lodging the Note of Appeal, which requires to contain all grounds, had expired. Unless the ground of appeal proffered could be regarded as at least potentially "arguable", that in itself was a sound basis upon which to refuse the application. But here, in addition, there appeared to be no merit at all in the ground, even in the circumstances then prevailing. The ultimate decision in Cadder v HM Advocate 2010 SCCR had not been published, but it had been widely anticipated as early as the time of the hearing in the UK Supreme Court in May 2010. The suggestion, which was made during the application for leave to appeal against the decision to refuse leave to amend, that the trial judge had directed the jury that they could rely on the admission in some way to support a verdict of guilty, is a misreading of what the trial judge actually said. That had been that it was only if the jury rejected any innocent explanation that an inference of guilt could be made from the presence of the DNA. If the interview had been excluded as inadmissible on Cadder grounds, such an inference would have been all the more easily made.

[9] The decision of the court on 3 September 2010 was first based upon the absence of cause shown to raise a devolution issue late. Quite separately, it was a discretionary decision in connection with whether to allow grounds of appeal to be amended many months after the expiry of the statutory time limit. The court was unable to discern what point of principle was involved which might merit consideration by the Supreme Court, even if a devolution issue might be seen to arise in this context. It accordingly refused the application. Although there was some reference by the appellant to some form of discrimination in that, it was said, some similar applications had been granted, the court was not referred to any such decisions. Furthermore, this application was made not only months after the decision had been taken but some considerable time after even the appeal against conviction had been refused. In these circumstances, whatever the merits of the original decision might have been, the court would also have refused this application as coming too late.