Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_46.html
Cite as: 2018 GWD 29-363, 2018 SCCR 285, [2018] HCJAC 46, [2018] ScotHC HCJAC_46

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Menzies

Lord Turnbull

STATEMENT OF REASONS

[2018] HCJAC 46

HCA/2017/27/XC

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

ADAM LUNDY

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: A Brown QC, Armstrong; Callahan McKeown & Co, Renfrew

Respondent: I McSporran QC Sol Adv; Crown Agent

18 January 2018

Background

[1] The appellant’s conviction for murder was quashed on appeal on 18 January 2018, on

the basis that (a) during the Crown speech to the jury the Advocate Depute had relied on

irrelevant emotional considerations, misrepresented crucial scientific evidence and relied on

evidence of statements by co-accused inadmissible against the appellant; and (b) the trial

judge had failed to take swift and decisive action to address these defects, which related to

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the central issue in the case. The Crown sought authority to bring a new prosecution in

terms of sections 118 and 119 of the Criminal Procedure (Scotland) Act 1995.

Submissions

[2] In advancing his motion the Advocate Depute relied on the circumstances and

nature of the crime and the strong public interest that such crimes should be prosecuted.

The graver the crime the stronger was that public interest. Fault on the part of the Crown, as

occurred here, was a relevant but not decisive factor. There had also been error on the part

of the trial judge. It appeared from the court’s decision that the faults would have been

capable of being corrected by firm direction, and might not themselves have rendered the

trial unfair, although the Advocate Depute was at pains to acknowledge that it was the

Crown’s conduct which had put the trial judge in the position of requiring to give suitable

directions. The degree of fault was also relevant: in the present case it did not affect the

evidence which was available.

[3] Four specific points were advanced:

1. Where the crime is murder, above all crimes, the public interest requires that

prosecution proceed. The public interest includes consideration of private interests of the

next of kin of the deceased. Where life has been taken, Articles 2 and 13 of the ECHR in

combination require that there be an adequate investigation and provision of an effective

remedy.

2. There has not been such a delay as might prejudice the rights and interests of the

appellant. The evidential position has not altered. The Crown fault did not impinge upon

the sufficiency of evidence.

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3. The case is unusual in that there is no dispute that appellant was responsible for the

killing. Any suggestion that following Miller v Lees 1991 SCCR 799 there must be some

special circumstances to justify granting authority where the Crown have been at fault was

not accepted. Such an approach was not consistent with Fraser v HMA (unreported, 17 June

2001), where there was not only fault on the part of the Crown, but the fault related both to

the pre-trial investigation and the presentation of the case, yet authority was granted. In the

present case the absence of any doubt that the fatal wounds were inflicted by the appellant

points away from refusal.

4. The appellant’s right to a fair trial will be preserved in any subsequent prosecution.

[4] In reply counsel for the appellant submitted that it was clear from Fraser that fault on

the part of the Crown remained a relevant factor to take into account. There were numerous

cases where the question whether there had been such fault was a critical issue. Even in

murder, authority has been refused: McCreight v HMA 2009 SCCR 743. The effect of

articles 2 and 13 added another layer of right, but was simply a reflection of the fact that the

homicide is at the extreme end of the criminal canon.

Analysis and decision

[5] The question whether the Crown had contributed to the miscarriage of justice

leading to granting of the appeal was identified at an early stage as a relevant factor in

whether to grant authority to bring a new prosecution (Mackenzie v HMA 1982 SCCR 499).

In subsequent cases the question whether the Crown had contributed to the miscarriage of

justice which resulted in the appeal succeeding, was identified as a central factor in whether

authority should be granted (see for example Cunningham v HMA 1984 JC 37; Wilkinson v

HMA 1991 SCCR 856; McDade v HM Advocate 1994 JC 186; Thomson v HMA 1997 SCCR 121).

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[6] Renton & Brown, Criminal Procedure, sixth edition, states at para 30-33.2 that:

“Authority to bring a fresh prosecution is likely to be granted where the ground of

appeal does not involve any fault on the part of the Crown, and the evidence is

sufficient for conviction.”

The implication seems to be that fault on the part of the Crown is likely to forestall any fresh

prosecution. The force of some of the observations made about this issue in earlier cases

may no doubt have contributed to what appears to have become a general perception that

fault on the part of the Crown will generally be sufficient to rule out a fresh prosecution,

regardless of other considerations, or at the very least will make it very difficult for that

result to follow, absent special circumstances. For example, in Miller v Lees, the Lord Justice

Clerk (Ross) recorded (emphasis added) that:

“The advocate-depute recognised that normally where there has been fault on the

part of the Crown, the court would not be disposed to grant authority to bring a new

prosecution, but he emphasised the special circumstances of this case.”

[7] Later, giving the court’s decision to allow such a prosecution he said that this was “in

the special circumstances of the case, despite the fact” that the Crown had been at fault. In

McDade the decision to grant authority for a fresh prosecution was expressed in these terms:

“since the miscarriage of justice arose from misdirection on the part of the trial judge

for which the Crown were not in any way responsible, we are satisfied that the

Crown should be given authority to bring a fresh prosecution.”

[8] A similar approach has been taken in numerous other cases. See Thomson (“The

Crown bears no responsibility for what went wrong. In my view therefore we should...

grant the Crown authority to bring a new prosecution…”;) McPhelim v HMA 1996 JC 203

(“Having regard to the fact that ….. no fault can be laid at the door of the Crown, we are

satisfied that it would be appropriate to grant authority to the Crown to bring a new

prosecution”.)

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[9] In Fraser v HMA the court recognised the difficulty in identifying a rationale for

considering fault on the part of the Crown as a relevant factor, noting that

“It may be important to bear in mind the peculiar background in Scotland where

virtually all prosecutions are at the instance of the Crown and where at common law

the court controlled even the desertion by the Crown of indictments, lest the accused

‘be harassed with repeated libels (Hume on Crimes II, p276)’”.

The court concluded

“Whatever precisely be the rationale for bringing into account, when deciding

whether or not to authorise a retrial, any ‘fault’ on the part of the Crown, it is clear

that this is a settled consideration in Scotland …to which this court, as presently

constituted, must have regard.”

[10] We proceed entirely on that basis. However, we think it appropriate to note that

“fault” on the part of the Crown is simply one of the many factors which must be

considered. It is not a consideration which bears more weight than other relevant factors.

The discretion conferred by the statute is an unfettered one, the correct test for the

application of which is whether it would be in the interest of justice. In Love v HMA (No 2)

(31 August 1999, Appeal No C931/97), the court said this:

“No limits are expressly prescribed to the circumstances in which the court may

grant authority to bring a new prosecution in accordance with section 119. Nor are

any criteria prescribed for the exercise of the power to grant such authority. In the

absence of such prescription the question to be addressed, in our view, is whether, in

the circumstances of the particular case, it is in the interest of justice to grant or

refuse authority.”

[11] Apart from “fault” on the part of the Crown, factors which have been identified as

relevant include the nature of the charges (Callan v HMA 1999 SLT 1102), the fact that there

remained a sufficiency of evidence (McGhee v HMA 1991 JC 119), the apparent strength of

the case, or lack of it, (McNicol v HMA 1993 SCCR 242; Farooq v HMA 1991 SCCR 889) and

the time which has elapsed since the alleged offence (Drummond v HMA 2003 SLT 295).

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[12] In the present case, the charge is one of the most serious which may be imagined. It

is clearly in the public interest that, where there is a sufficiency of evidence, a person

accused of serious crime should be brought to trial and tried fairly. The points made by the

Advocate Depute regarding articles 2 and 13 are reflections of the importance which our law

gives to both these points. There remains a sufficiency of evidence. As to the strength of the

case, the appellant acknowledges responsibility for stabbing the deceased to death, the issue

for trial being restricted to the nature and quality of his actings. The time which has elapsed

is not an unreasonable one, and is not likely to have any effect on the evidence which may

be led. It is clear that a fair trial remains possible. The only argument against granting

authority was that the Crown had been at fault. That is true, but the error was not one

which in any way “tainted” the evidence or was likely to call into question the reliability of

any evidence which might be led, and has had no effect on the question of sufficiency. In all

the circumstances we were satisfied that this was a case in which it is in the interests of

justice that we should exercise our discretion in favour of the Crown motion.