Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 96

MA1/14, MA2/14 and MA3/14

Lord Justice Clerk

Lady Dorrian

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the application under the Double Jeopardy (Scotland) Act 2011

by

HER MAJESTY’S ADVOCATE

Applicant;

against

(FIRST) RONNIE COULTER; (SECOND) ANDREW ALEXANDER MARSHALL COULTER; and (THIRD) DAVID SHIELDS MONTGOMERY

Respondents:

to set aside the acquittals of the respondents and to grant authority to bring a new prosecution against them

Applicant:  Prentice QC (sol adv) AD; the Crown Agent

First Respondent:  Allan QC, G Ross; Manini Belardo Matteo, Coatbridge

Second Respondent: Graham, Tonner; John Pryde & Co, SSC (for Ness Gallagher & Co, Wishaw)

Third Respondent: Ogg QC, Labaki; John Pryde & Co, SSC (for Stephen J MacBride, Wishaw)

28 November 2014

Introduction
[1]        The applicant craves the court to set aside the acquittals of each of the respondents relative to the murder of Surjit Singh Chhokar on 4 November 1998 in Overtown, Lanarkshire.  He seeks authority to bring a new prosecution for the “original offence” against all of the respondents.  The first respondent was acquitted on 9 March 1999 after a trial on an indictment which libelled murder against him only; albeit “while acting with others”.  The second and third respondents were acquitted on 28 November 2000 after a subsequent trial against them on an indictment for murder, which did not libel concert in the murder with the first respondent. 

[2]        The applicant maintains that, subsequent to the respective acquittals of the first two respondents, evidence that each had made certain admissions was discovered.  In addition, following the acquittals of all three respondents, the applicant avers that new evidence has emerged against each of them.  The application is therefore made in terms of sections 3 and 4 of the Double Jeopardy (Scotland) Act 2011.  The essential issue in respect of each respondent is whether the statutory tests for setting aside acquittals and authorising new prosecutions have been met. 

The original trials
[3]        The deceased was killed as a result of a stab wound to his heart during an incident which occurred at about 11.30pm on 4 November 1998 outside the home of his girlfriend, namely Elizabeth Bryce, in Garrion Street.  Within a matter of days, each of the respondents was arrested.  They were all committed for further examination, albeit on slightly different days, at Hamilton Sheriff Court.  For reasons which are documented in detail in the report by Sir Anthony Campbell, dated June 2001, the instruction from Crown counsel thereafter was to proceed to full committal on the murder charge only against the first respondent and to release the other two respondents from custody. 

[4]        Having considered the precognition subsequently prepared, Crown counsel determined that, in the first instance, the Crown would indict only the first respondent for murder, albeit that the position of the second and third respondents was to be re-considered after the trial.  It was Sir Anthony’s view that, for a variety of reasons concerned principally with failures in communication between Crown counsel marking the papers and the local and Crown Office procurators fiscal reporting to them, no considered decision had been taken in relation to the inclusion of the second or third respondents in the first indictment.  The correct decision, based on the evidence known at the time, would have been to prosecute the first two respondents for murder and to list the third respondent as a witness.  The court did not understand these findings to be disputed by any party.

[5]        The trial of the first respondent took place in March 1999.  He pled not guilty and incriminated the two other respondents.  The evidence was that the deceased lived in a flat in the multi-storey block at Caplaw Tower, Gowkthrapple, Wishaw.  Also living in the block were the first respondent and, in a different flat, his nephew, the second respondent.  On 4 November, the deceased’s flat had been broken into and a benefit cheque had been stolen.  The deceased and Ms Bryce were told at the Job Centre that this cheque had been cashed by the second respondent, who was known to them.  Ms Bryce took the matter up with the second respondent’s family, who lived near her in Overtown.  She spoke to the second respondent and told him that she may have to involve the police.  The second respondent had replied that, if he was going to be in trouble with the police, the deceased would be “getting it”.  Ms Bryce asked the second respondent to come to her home at about 11.30pm to discuss the matter with the deceased.  By that time the deceased would have finished his work as a waiter and returned to her address. 

[6]        During the course of the evening, the first and second respondents were in the first respondent’s flat.  Two women testified that the respondents had discussed going to Overtown with the intention of discouraging the deceased from contacting the police.  This was to be achieved by hitting him “a few times”.  The second respondent said that he would take the bat which he had in his flat.  He also said that he would “batter” the deceased with his boots, which he was about to put on.  Other more extreme methods of inflicting pain were discussed, but dismissed as being humorously intended.  In cross-examination, the witnesses agreed that all of this was very much the second respondent’s operation with the first respondent joining in, if the deceased chanced to gain the upper hand.  The two respondents were going to ask the third respondent to give them a lift to Overtown.

[7]        Ms Bryce testified that, at about 11.30pm, she saw the deceased park his car near her house.  He approached her gate.  All three respondents appeared.  They seized hold of the deceased.  Ms Bryce described the first respondent holding the deceased’s right arm, the third respondent holding the deceased’s left arm and the second respondent holding him by his jacket “in the middle”.  They were running him across the road.  The second respondent was pushing him and the other two were pulling him. 

[8]        Ms Bryce lost sight of the incident whilst she armed herself first with a bottle and then a spade.  She ran out of the house shouting at the respondents to stop.  By this time the deceased and the respondents had moved across to the other side of the street.  She saw the third respondent run off.  The second respondent stepped back.  The first respondent, who had been holding something, swung his right hand underarm towards the abdomen of the deceased.  The first and second respondents then ran away.  The deceased was able to tell Ms Bryce that he had been stabbed before he collapsed with fatal wounds.

[9]        There was no other eye‒witness evidence about the inter-action between the three respondents and the deceased.  What is, of course, known is that, during this short period, the deceased had suffered three stab wounds, including the fatal blow to the heart, and multiple bruising caused by blunt force trauma.

[10]      There was further evidence that, on the following day, the first respondent had given his then girlfriend, namely Alexandra Tierney, bags containing clothing and a set of knives, with one missing, to dispose of.  These were later recovered.  A fingerprint of the first respondent was on the box containing the knives and that of the second respondent on one of the knives.

[11]      Neither the second nor the third respondents was called to give evidence.  The first respondent did not testify on his own behalf.  He was nevertheless acquitted, presumably on the basis that the jury were not satisfied that he was either the person who had stabbed the deceased or that he had acted in concert with whichever one of the respondents had been responsible.  There followed certain outspoken remarks of the trial judge, who publicly criticised the Crown for not prosecuting all three respondents for the murder on the one indictment.  This in turn provoked a sharp response from the Lord Advocate regarding the correct division of constitutional responsibilities. 

[12]      The Crown re-assessed the situation and decided to indict the second and third respondents for the murder.  The view was taken that, standing McAuley v HM Advocate 1946 JC 8, the Crown were barred from proffering a charge which ran contrary to a prior jury verdict.  Accordingly, the form of the indictment was constrained.  That constraint was ultimately to lead to a fundamental problem in the prosecution of the case. 

[13]      The new indictment libelled that, although the second and third respondents had initially acted with the first respondent in assaulting the deceased by seizing, struggling with and striking him on the body, they had acted in concert only with each other in the stabbing of the deceased.  There was no allegation of acting in concert with the first respondent in the murder, notwithstanding that it had been the clear position of the Crown at the first trial that he had been the principal actor. 

[14]      The evidence at the second trial included much of the same testimony as had been given at the first.  There was one other eye‒witness, namely Thomas Muir, who said that he had seen one of the attackers striking the deceased on the shoulder with a stick.  The first respondent was called as a Crown witness.  He maintained that he had not been involved in the assault, although he had seen the other two respondents attacking the deceased.  He had only intervened to defend him.  He had not seen anyone using a knife, nor had he seen the deceased being stabbed.  A baton and a skip cap (which had been worn by the second respondent at the material time) were discovered in a vacuum cleaner in the second respondent’s flat. 

[15]      Interviews of the second and third respondents contained admissions from both that they had been present at the time of the assault.  The second respondent maintained that he had been alone at the time of the attack.  He had struck the deceased once with the bat.  The third respondent made no admission at interview of inflicting any violence.  The second respondent did not give evidence on his own behalf.  However, he did lead evidence from his mother, Margaret Chisholm (the first respondent’s sister), that she had visited the first respondent whilst he had been on remand pending trial.  He had admitted to her that he had stabbed the deceased.  “He was quite proud of it”.  Following upon his acquittal, the first respondent had been in her house and had said “I’ve just got away with the perfect murder”.  The third respondent did testify.  He said that he had driven the other two to the scene, although he had not anticipated any violence.  Once at the locus, he had seen the second respondent making a swinging motion towards the deceased with a bat.  At that point, the first respondent had “banged him, got into him”.  It looked as if he was punching him with both hands.  He had not seen anything in his hands.

[16]      The trial judge directed the jury, as he had been bound to do, that if they considered that the first respondent had been responsible for the stabbing, they would require to acquit, standing the terms of the libel.  The second respondent was acquitted of the murder, although convicted of assault by using the bat.  The third respondent was acquitted of the whole charge. 

[17]      As at the conclusion of the second trial, therefore, the Crown had unsuccessfully prosecuted the first respondent on the basis that he had been the principal actor.  They had unsuccessfully prosecuted the second and third respondents on the basis that the first respondent had not been the principal actor.  During the course of the second trial, having regard to Howitt v HM Advocate 2000 SCCR 195, which had overruled McAuley (supra), the trial judge had raised with the Crown the possibility that they might wish to amend the indictment to libel the participation of the first respondent in the murder.  However, a considered decision was taken not to do that.  This had been partly because of the line which the Crown had already taken during the course of the second trial and partly because of the evidence of the pathologists that the second respondent had been in the better position to stab the deceased, at least given the initial positionings spoken to by Ms Bryce. 

Alleged subsequent admissions and purported new evidence
[18]      In seeking to have the acquittal of the first respondent set aside, the Crown pointed first to the admissions by him to his sister, Margaret Chisholm, whilst he was on remand and after he had been acquitted (supra).  Secondly, Martin Duncan, the first respondent’s brother-in-law, had recently come forward with evidence to the effect that, between the dates of the two trials, when the first and second respondents had both been in his car, the first respondent had said “We’ve got away with it”, referring to the death of the deceased.  Hugh Langford had also recently reported that, on the day of the second respondent’s acquittal, both the first and the second respondents had been “showboating” about “getting off with it” and about the success of their plan to blame one another.  It is accepted by the Crown that he must at least have been mistaken about the date.  Katelyn Finlay, whose mother had been in a relationship with the first respondent, had recently volunteered that the first respondent had said to her mother: “Aye, I done it”.  She referred to letters (not recovered) from him in a similar vein. 

[19]      The Crown founded upon new evidence, not in the form of admissions, but again coming from Margaret Chisholm.  She had now said that the first respondent had asked her to find a knife (presumably the murder weapon) which had been deposited somewhere between Overtown and Gowkthrapple.  She had attempted to do this, but had failed.  The first respondent, who was still in custody, had asked her to go and buy a set of knives, take out the smallest one and put it in a drawer in his flat.  She did not do this.  However, it appears that the first respondent’s agents made a request to the police to look for the murder weapon in the drawer, thus suggesting that the first respondent had attempted to set up a situation in which the police would discover a knife, which might either have been used to commit the murder but which was not capable of being forensically linked to him or simply explained the whereabouts of the knife missing from the set. 

[20]      In relation to the second respondent, the Crown founded upon evidence of purported admissions from the second respondent.  Hugh Langford’s evidence involved the second respondent in conjunction with the first respondent.  Mary Langford, his sister, spoke to seeing the second respondent at a bus stop, whilst he had been at liberty.  He had said “I’m out on bail.  I’ve done Chhokar”.  Derek Miller had been a cell mate of the second respondent, during the short period of his initial remand.  He maintained that the second respondent had said that he and his uncle “had done a Paki”. 

[21]      There was new evidence involving both the second and third respondents.  The Crown founded upon Carol Laing, a neighbour of Ms Bryce in Garrion Street.  Although she had not previously said anything because of “fear of hassle”, she now maintained that she had seen all three of the respondents in an attack on the deceased, at least involving pushing.  Paul Rudden, who now lives in New Zealand, had provided a statement to the effect that the third respondent had told him that he had been aware of a pre-conceived plan on the part of the first and second respondents to “rough up” the deceased, although there was nothing in his statement to suggest that the third respondent had been aware that any significant violence was to be used.

Submissions
Crown
[22]      The advocate depute submitted that, in terms of sections 3(1) and 4(1) of the 2011 Act, each accused had been acquitted of the “original offence”; that being the offence of murder (HM Advocate v Boyle 1993 JC 5; HM Advocate v Stewart 2010 JC 183).  In each case the respondents had either admitted the offence subsequently and/or were the subject of new evidence that each had committed the offence (ss 3(3); 4(3)).  Neither the admissions nor the new evidence was known, nor could it with the exercise of reasonable diligence have become known, to the Crown at the time of the respective acquittals (ss 3(4)(a); 4(7)(b)).  The admissions and/or new evidence had strengthened substantially “the case” against the relevant respondent (ss 3(4); 4(7)), in the sense of having more than a trivial or marginal effect on the strength of the case and adding weight or substance to it (HM Advocate v Sinclair [2014] HCJAC 131).  It was accepted, under some prompting by the court, that since admissions were dealt with separately under section 3, they could not also be regarded as new evidence under section 4.  Nevertheless, it was “highly likely” that a reasonable jury would have convicted the first and second respondents of the original offence on the basis of the new admissions and the evidence which had been led at their respective trials (s 3(4)(c)).  This was so even if the admissions were not all unequivocal (Greenshields v HM Advocate 1989 SCCR 637).  It was equally likely that the same result would have followed in respect of the combination of the new evidence against all of the respondents and that led at their respective trials (s 4(7)(c)).  The new evidence of all three acting in concert was particularly significant in relation to the second and third respondents (Black v HM Advocate 2006 SCCR 103).

[23]      It was in the interests of justice that the court set aside the acquittals (ss 3(4)(d); 4(7)(d)) and grant authority for a new prosecution.  It was accepted that, notwithstanding the terms of the written Case and Argument which quoted dicta from Ras Behari v King-Emperor (1933) 50 TLR 1 (at 2); Cart v Upper Tribunal [2011] QB 120 (at para 34); and R v A [2009] 1 WLR 1947 (at para 41), the concept of the interests of justice did include a consideration of finality.  However, it also required that the public have confidence that the criminal justice system would result in the guilty being convicted unless it was unfair to do so.  The interests of the deceased’s family were relevant.  A fair trial remained possible, despite the passage of time.  All but two of the original witnesses were still alive.  The evidence of the deceased witnesses was available in written form and did not pose a problem.  Copies of all of the productions were available.  The relevant labels had been recovered.

[24]      The Crown had exercised due diligence in re-investigating the case.  They had brought this application within a reasonable time after the coming into force of the 2011 Act in November of that year.  Fresh statements had been taken from all the original witnesses.  The locus had been reconstructed for photographic purposes.

[25]      Any issues surrounding publicity adverse to the respondents could be satisfactorily resolved.  The respondents had not pointed to any such publicity.  In any event, any media reporting would now be of “some antiquity” (HM Advocate v Sinclair (supra) at para [132]).  The public memory was “notoriously short” (Stuurman v HM Advocate 1980 JC 111 at 123).  Shorter periods had been deemed sufficient to mitigate any prejudice (HM Advocate v Beggs 2011 SCCR 879; Kilbane v HM Advocate 1990 SLT 180; and Haney v HM Advocate (No. 2) 2003 JC 46).  The focusing effect of listening to evidence over a prolonged period was important (HM Advocate v Sheridan 2012 SCL 298 at 304) as was the impact of jury directions (Montgomery v HM Advocate 2001 SC (PC) 1 at 30; Mitchell v HM Advocate 2008 SCCR 469 at paras [71] – [72]; Beggs (supra) at para [37]; Sinclair (supra) at para [132]; R v Dobson [2011] EWCA Crim 1255 at paras 80-91).  In R v Dunlop [2007] 1 WLR 1657 it had been suggested (para 22) that adverse publicity could be dealt with by appropriate jury management.  There was a danger of over-estimating the impact of any prior publicity (Fraser v HM Advocate 2000 SCCR 412 at 421; Mitchell (supra) at para [76]; Beggs (supra) at para [36]).

[26]      In relation to any delay, this was best examined within the context of the interests of justice, rather than as a stand alone allegation of a breach of the reasonable time requirement in Article 6 of the European Convention.  At present, the respondents were acquitted persons.  They had been since their trials.  They had not been adversely affected by any delay post trial in Convention terms.  They could not be “charged” in terms of Article 6 (Eckle v Germany (1983) 5 EHRR 1 at para 73; Attorney General’s Reference (No. 2 of 2001) [2004] 2 AC 72 at para 27; O’Neill v HM Advocate 2013 SC 266) unless and until the court so authorised.  The period between acquittal and the application thus fell to be disregarded (R v Dunlop (supra) at para 29).

First Respondent
[27]      In the course of the application, the first respondent had initially lodged two notices of his intention to raise a compatibility issue.  Shortly before this application, he lodged a further notice intended to supersede the earlier two.  This raised issues of delay and adverse publicity.  At the commencement of his submission, the first respondent withdrew the extant compatibility issue minute.

[28]      The first respondent adopted the submission of the second respondent (infra) that, in terms of both sections 3(1) and 4(1), the first respondent was not “an acquitted person”.  On the contrary, he had been convicted of assault on the first indictment after trial.

[29]      The first respondent did not dispute that the existence of either the alleged admissions or the purported new evidence was not known and could not have been known to the Crown prior to the first respondent’s acquittal (ss 3(4)(a); 4(7)(b)).  It was accepted that, were the admissions to be believed, the case against the first respondent would be strengthened substantially (s 3(4)(b)).  However, in relation to the issue of whether it was “highly likely” that a reasonable jury would have convicted on the basis of the admissions or the new evidence when combined with the evidence at trial, this involved a qualitative assessment which could not be achieved by looking at the evidence on paper.  In a manner similar to the court’s approach in “fresh evidence” appeals, the new material had to be regarded as credible and reliable (Al-Megrahi v HM Advocate 2002 JC 99 at para 219).  In any event, the criterion of high likelihood had not been met in relation to either the admissions or the new strands of evidence.  The Act was not designed to allow the Crown two bites at the cherry.  The first respondent had lived with the verdict of acquittal for many years.  In his case, finality was justice.

Second Respondent
[30]      The second respondent maintained that he was not a person acquitted of the original offence (ss 3(1) and 4(1)).  Rather, he had been convicted of an assault with a weapon; that having been part of the libel which had led to the averment of murder.  The verdict had been one of guilty, albeit under deletion of the use of the knife and hence the element of murder.  Murder was not an offence separate from assault.  Assault was an essential component of murder.  In returning their verdict, the jury had not acquitted the second respondent of murder, but had convicted him of all that they could have done, standing the terms of the indictment.

[31]      The alleged admissions and purported new evidence took the Crown no distance beyond that which had reflected their original, and what was now again their, approach to the evidence.  They did not advance the Crown case further than the terms of the libel of which the second respondent had already been convicted.  The accounts given by Mr Duncan and Mr Langford involved the second respondent reacting to remarks by respectively laughter and silence.  The comments said to have been made to Mr Miller and Miss Langford pointed only to involvement in an assault and not a homicide.  None of this strengthened substantially the case against the second respondent.  It would not, when combined with the evidence at the original trial, have rendered a conviction highly likely.

[32]      The new evidence from Mrs Laing was to a similar effect.  The jury had already convicted the second respondent of involvement in an attack with a weapon.  Mrs Laing did not advance the case against the second respondent, especially given that the Crown’s position was again that the first respondent was the person who had stabbed the deceased.

[33]      The second respondent did not insist on his first compatibility issue minute, which related to the reasonable time requirement, or his second minute, relating to general fairness.  These aspects could be addressed as an aspect of the interests of justice.  He did, however, press a third point said to raise such an issue.  This was that the applicant had breached the second respondent’s Article 5 and 6 rights by presenting this application to the court.  This amounted to an attempt to “deny the second respondent his [Article 5] right to freedom” following what had been anticipated to be a final verdict of the jury.  The second respondent’s Article 6 rights were infringed in so far as the applicant was using the double jeopardy process not only to present new evidence but also to rectify flawed decisions which had been taken in the past.  The applicant was entitled to try to remedy past injustice, but not to overcome the finality of verdicts.

[34]      Although the deceased’s family might expect the Crown to do everything practicable to bring his killers to justice, the interests of justice required that matters must reach a point when they became final (Kalyanjee v HM Advocate 2014 SCCR 397; Carberry v HM Advocate 2013 SCCR 587; Toal v HM Advocate 2012 SCCR 735).

Third Respondent
[35]      The third respondent did not insist upon his compatibility issue minute.  It was not disputed that the third respondent had been acquitted of the original offence.  There had been no sufficiency of evidence against him until he himself had given evidence at his own trial.  That had involved him admitting being at the scene.  The new evidence from Mr Rudden and Mrs Green did not involve the third respondent in any attack with a weapon and hence in a murderous assault.  It did not strengthen substantially the case against him, nor did it make it highly likely that a reasonable jury would have convicted.

Decision
[36]      Each of the respondents has been acquitted of the offence of murder, which was libelled in the indictments upon which they were tried.  Sections 3(1) and 4(1) of the Double Jeopardy (Scotland) Act 2011 do not refer to acquittals of charges but of offences.  Charges may libel multiple offences; in the case of the indictments against the respondents, these were assault and murder.  A jury returning a verdict of guilty under deletion of any reference to murder is a verdict which results in the acquittal of the accused of the offence of murder. 

[37]      Section 3(1), which relates only to post acquittal evidence of admissions, can be utilised in respect of any acquittal in summary or solemn proceedings.  Section 4(1), which relates to new evidence, may be employed only where the acquittal has been in the High Court.  This does not mean that an admission cannot also be new evidence for the purposes of section 4(1).  In a High Court case, where an admission is relied upon, it is the combination of admission and other new evidence which should be considered when applying the tests of strengthening substantially the case against the respondent (“case” meaning the evidence led at the original trial of that respondent) and of there having been a high likelihood of conviction as a result of the new and old evidence.

[38]      The most obvious defect in the case which was presented at the first trial was the paucity of evidence which placed any weapon in the hands of any of the three respondents.  In particular, there was the lack of anyone speaking to seeing the first respondent with a knife.  Ms Bryce came closest to singling out the first respondent with her reference to his underarm swing towards the deceased’s abdomen, but the jury must have had some difficulty with her testimony given the nature of their verdict.  Perhaps the lack of other eye‒witnesses or the absence of circumstantial support for her account was a feature.  Alternatively, the lack of testimony from any of the three protagonists may have troubled the jury in circumstances in which only one had been selected for trial.  If the full rigour of the rationale in Brown v HM Advocate 1993 SCCR 382 were to be followed, it would not be too difficult to regard the evidence at the first trial, against only one of three possible actors, as less than conclusive.  This was clearly the worry of the advocate depute at that diet.

[39]      What happened after the acquittal, however, if Mrs Chisholm is to be accepted, is that there emerged evidence that the first respondent had already filled what might have been regarded as the major fissure in the Crown case.  He had admitted that he had been the one who had stabbed the deceased.  It is not disputed that the Crown could not, with reasonable diligence, have been aware of this admission prior to trial.  It was boosted by his post trial statement, again to Mrs Chisholm, that he had “got away with” murder.  There are the additional alleged statements to Mr Duncan, Mr Langford and Miss Finlay, but the clearest incriminating statement, if it is to be believed, is that to Mrs Chisholm.  It is she, the first respondent’s sister, who also provides the new evidence concerning the elaborate attempt at knife recovery and planting.

[40]      As the first respondent recognised, it is a short step to holding that this evidence strengthens substantially the “case”, that is to say the evidence at the original trial, against the first respondent.

[41]      Although it was originally contemplated that the court might require to hear oral testimony, at the Procedural Hearing of 29 August 2014 it was accepted that it would be sufficient that affidavits be produced.  That was on the basis that it was not disputed that the evidence to be contained in the affidavits was capable of being regarded as credible and reliable by a reasonable jury, even if certain criticisms might legitimately be levelled at it with a view to undermining both its veracity and accuracy.  The court proceeds on that basis in holding also that, in the case of the first respondent, it is highly likely that a reasonable jury would have convicted the first respondent on the basis of the evidence at his trial together with the new material, including the admissions.

[42]      In addressing the same questions in relation to the second and third respondents, the court is unable to reach the same conclusion.  The case as presented at the second trial included, amongst other adminicles, an admission by the second respondent to the police that he had attacked the deceased with a bat; presumably the instrument subsequently found in his vacuum cleaner.  There was clear evidence from Ms Bryce that he had been involved in a concerted attack on the deceased.  There was evidence that he had had a pre-conceived plan to carry out such an attack, even if, for reasons which are unclear, the jury’s verdict may be read as excluding him from the initial stages of the incident.  The admissions attributed to the second respondent, other than the one to Miss Langford, are, first, in the form of limited reactions to the remarks of his uncle and, secondly, dubious as to their authorship.  Even that to Miss Langford that he had “done” the deceased and to Mr Miller that he and his uncle had done so are somewhat equivocal, given his admitted responsibility for at least part of the attack.  The new evidence from Mrs Laing of his involvement as one of three men goes little beyond the testimony of Ms Bryce or indeed that of the third respondent in so far as he described the second respondent attacking the deceased.

[43]      It may be that all of this strengthens the case against the second respondent, but it is difficult to conclude that it does so substantially, even in the limited sense in which those words have been interpreted as meaning having more than a trivial or marginal effect (HM Advocate v Sinclair [2014] HCJAC 131, Lady Dorrian, delivering the Opinion of the Court, at para [100]).  For the same reason it is not possible to conclude that a reasonable jury would be “highly likely” to have convicted on a combination of the old and new evidence.  In so determining, the court has disregarded the direction given at the second trial to acquit in the event of the jury being unable to exclude the first respondent as actor.  It has assessed the matter on the assumption that, were the second respondent to be re-indicted, he would, on the contrary, face a libel of acting in concert with the first respondent.

[44]      Suffice it to say, a similar approach applies to the purported new evidence against the third respondent.  At the trial, he admitted being present at the locus.  There was evidence that he was involved in an attack on the deceased; even if he denied this and his denial must have been regarded by the jury as providing a reasonable doubt.  In all these circumstances, even if the new evidence does strengthen the case against him, it does not do so substantially or in such a way as to make it highly likely that a reasonable jury would have convicted.  It follows from this that the application, in so far as it relates to the second and third respondents, must be refused.

[45]      The court’s power to set aside an acquittal is circumscribed by the provision that it may do so only if it is satisfied that that is in the interests of justice.  The starting point of the 2011 Act is the recognition that there ought to be a rule against double jeopardy (s 1).  Any assessment of whether, in a particular case, there ought to be an exception made “in the interests of justice” must recognise the purpose of the rule in societal terms.  As the Law Commission put it (SLC Report on Double Jeopardy No. 218 para 2.2):

“First, the rule is a fundamental recognition of the finality of criminal proceedings.  Finality of criminal verdicts provides at least two major benefits to society.  The individuals involved in the trial can continue with their lives confident in the knowledge that the matter has been resolved.  In addition, there is the more general benefit that public confidence in the efficacy of the court system is bolstered.  Second, the rule has an important function in expressing the limits of the power of the state vis‒à‒vis the citizen.  Third the rule against double jeopardy affords protection from the anxiety and humiliation that repeated trials would undoubtedly cause accused persons.   Protection from such stress is what Hume described as the ‘obvious and humane consideration’ which is in his view the primary justification for the rule against double jeopardy.” (see also para 4.37 et seq)

That finality is such an important aspect of justice has repeatedly been stressed in a number of different situations (Kalyanjee v HM Advocate 2014 SCCR 397, LJC (Carloway) at para [72] citing Healy v HM Advocate 1990 SCCR 110, LJC (Ross) at 118, Toal v HM Advocate 2012 SCCR 735, LJG (Gill) at para [108]).  It remains a major consideration in an application of this type (HM Advocate v Sinclair (supra), Lady Dorrian at para [104]).

[46]      The Law Commission were able to recommend (para 4.2) an exception to the rule in the situation where new evidence emerged that the acquitted person had admitted the offence because:

“There is something profoundly disquieting about the notion that a person should effectively be able to boast ‒ with impunity ‒ that he has ‘got away with it’”.

The parallel with the evidence now proffered in relation to the first respondent is manifest.  It provides a strong basis for concluding, in the absence of countervailing factors, that the orders sought should be granted in his case.  The same considerations have less force in the case of the second respondent’s somewhat vague comments.

[47]      The Law Commission was far less confident about the situation where new evidence, other than that of an admission, had emerged.  It was unable to reach a concluded view (para 4.43).  Ultimately, Parliament considered that an exception based on this ground should only be applicable in the most serious of cases; that is those prosecuted in the High Court.  Although mentioned in sections which create an initial hurdle, which the court does not consider has been surmounted in relation to the second and third respondents, the strength of the new evidence may also be seen as a component in determining where the interests of justice may lie.  The more certain the new proof, the more it will be in the interests of justice to re‒indict.  Once more, the new evidence concerning the purchase and placement of the knife is capable of being regarded as significant although, even if accepted, it can hardly be said to afford certain evidence of guilt.

[48]      The counter‒balancing factors in the case of each respondent centre upon the prospect of now being able to have a fair trial.  They include, in that context, an assessment of the effect of the passage of time and any adverse publicity.  They also involve a consideration of whether the Crown should be afforded an opportunity to remedy what seem to be clear past errors.  The passage of time is significant, but not decisive in a situation where, as here, the original evidence is relatively intact and no prejudice can be identified.  No particular adverse publicity has been drawn to the court’s attention.  For the reasons explored in similar situations, including the retrial of persons following appeal (eg Fraser v HM Advocate 2000 SCCR 412, Lord Osborne at 420‒421) there appears to be no real issue here.  The focusing effect of listening to the evidence and the judge’s directions ought to be sufficient to eliminate any unfairness in this area.  Ultimately, the respondents did not press the point with much vigour.

[49]      The court is concerned to note that, in relation to the second and third respondents, the new material generally appears to point to the first respondent as the principal actor.  The effect of that is that, as distinct from the position of the first respondent, were a new prosecution to be authorised the applicant would be proceeding against the second and third respondents on a quite different basis from that which they faced at their original trial.  Permitting acquitted persons to face such a prospect, and allowing such a volte face on the part of the Crown, are important considerations to weigh in the balance in favour of the second and third respondents.  The Crown elected to proceed in the manner which they did at the second trial.  Having regard to the interests of justice, the court is not persuaded that it is right that they should, on the somewhat flimsy basis of the new material, be allowed to revert to a position which they might have adopted against the same respondents in the first place upon more or less the same material.

[50]      Having considered all the circumstances, the court is satisfied that it is in the interests of justice that the acquittal of the first respondent be set aside.  It will therefore authorise a new prosecution in his case.  Had it required to do so, the court would have held that it was not satisfied that it was in the interests of justice that the acquittals of the second and third respondents, who were prosecuted on a different basis from the prosecution now sought, be set aside.

[51]      That leaves, for the sake of completeness, the second respondent’s compatibility issues.  The court has struggled to understand how the mere making of an application to the court can raise such an issue.  In relation to Article 5, that provides that everyone has a right to liberty.  No‒one should be deprived of his liberty except in certain defined circumstances, including lawful detention after conviction by a competent court.  The second respondent is at liberty.  There has been no attempt by the applicant to deprive him of his liberty in advance of conviction.  In these circumstances, no breach of Article 5 can arise.  In that regard, it is no surprise that the compatibility issue minute is entirely silent on the remedy sought for the alleged breach.  In relation to Article 6, re‒prosecuting an acquitted person is not per se a breach of the right to a fair trial (Nikitin v Russia (2005) 41 EHRR 10 at para 57).  Such unfairness will only arise if there is thereby created some imbalance between the interests of the individual and the need to ensure the effectiveness of the criminal justice system.  However, the 2011 Act itself defines the limited parameters within which a new prosecution may be authorised.  An important element is that such authorisation is under judicial control.  The court must be satisfied that it is in the interests of justice that a new prosecution should proceed.  That test is entirely compatible with the Convention jurisprudence (cf the situation if the United Kingdom had ratified Article 4 of Protocol No. 7).  In these circumstances, the court is at a loss to understand how the applicant can be seen as breaching the second respondent’s Article 6 rights merely by making an application to the court under legislative provisions which are not themselves regarded as incompatible with the Convention.