Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 82

HCA/2016/142/XC

Lord Justice General

Lady Paton

Lord Menzies

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPLICATION TO AMEND A NOTE OF APPEAL

by

ANDREW BAISLEY

Applicant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Applicant:  S Collins (sol adv); Collins & Co (for Livingston Brown, Glasgow)

Respondent: I McSporran AD; the Crown Agent

8 September 2016

[1]        On 11 February 2016, the applicant was convicted of two charges which libelled that he took certain indecent photographs of children, contrary to the Civic Government (Scotland) Act 1982, section 52(1)(a), and that he had such photographs in his possession, contrary to section 52A(1) of that Act.  The libel in each charge was simply one of taking or having possession of the photographs.  There was no specification about the devices upon which the photographs were held.  As it turned out, according to the evidence, there were four devices, namely two hard drives, a USB pen drive and a laptop. 

[2]        On 31 December 2015, the applicant had lodged a preliminary issue minute challenging the relevancy of the charges because of the absence of specification of the individual devices.  The nature of the complaint was that, if the jury found the applicant guilty of a charge, it would not be possible to determine whether the conviction related to the photographs on all, or only on one or more, of the devices.  That minute called at a First Diet on 6 January 2016.  The minute of proceedings records that the applicant withdrew the minute.  It is not disputed that that was done.  The factual issue which was aired at the hearing was the circumstances of that withdrawal.  According to the applicant, there was some form of undertaking given by the procurator fiscal depute that the charges would be amended in due course to reflect the number of devices.  According to the Crown, however, and supported by documentation from the procurator fiscal depute, no undertaking of this nature was given.  None is recorded.  The trial proceeded with no further complaint until the conclusion of the Crown case, when it was re-raised.  No amendment to the libel was made.             

[3]        In due course the applicant lodged a Note of Appeal against Conviction.  This contained no reference to the matter.  The Note proceeded to consideration at the first sift on the basis of insufficiency of evidence.  Leave to appeal was refused by the first sift judge.  The applicant has applied for a review of that decision on various grounds.  In the context of that application, he has tendered a new ground of appeal that the Crown acted oppressively on the basis that, when the applicant sought to challenge the relevancy of the charges at the First Diet, the Crown had given an undertaking to amend the charges.  That undertaking had not been obtempered. 

[4]        There is no sufficient reason advanced as to why this matter is being raised at this late stage.  Were it to have been something of substance, it could have been put in the original Note of Appeal.  That was not done.  So far as the narrative of events is concerned, there is no question of any form of oppression on the part of the Crown.  It may be that something occurred at the First Diet which persuaded the applicant to withdraw his minute, but the reality is simply that that is what was done and the matter was not re-raised prior to the jury being empanelled. 

[5]        In the absence of material which would support the assertion of the giving of an undertaking and thus that the Crown had acted oppressively in not abiding by it, the court does not consider that there is an arguable case set out in the new ground.  It will therefore refuse this application to amend the Note of Appeal.