Andrew Baisley v. Her Majesty’s Advocate [2016] HCJAC 82

Application to amend a note of appeal:- On 11 February 2016, at Glasgow Sheriff Court, the applicant was convicted after trial on indictment of two charges:- (1) taking indecent photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982; and (2) possession of indecent photographs of children contrary to section 52A(1) of the Civic Government (Scotland) Act 1982. On 31 December 2015 a preliminary issue minute was lodged on behalf of the applicant in which the relevancy of the charges was challenged on the grounds that there was no specification of the individual devices which the Crown had analysed. There were four devices, namely, two hard drives, a USB pen drive and a laptop which had been forensically analysed. Within the minute it was averred 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. On 6 January 2016 at a first diet the minute was withdrawn and that was accepted at the hearing of this application. It was the applicant’s position, however, that some form of undertaking had been provided by the procurator fiscal depute dealing with the case at the first diet that at some point in advance of the trial there would be an amendment to the two charges to include reference to the four devices. It was contended on behalf of the Crown, however, that no such undertaking had been given, there being no reference to it within the Crown papers at the time, nor accepted by the information provided by the procurator fiscal depute. At the trial the issue was raised at the close of the Crown case, however, no amendment to the libel was made. The appellant appealed against his conviction, however, the Note of Appeal against conviction made no reference to the issue of the relevancy of the charges or of the purported undertaking by the procurator fiscal depute the Note of Appeal only focusing on the question of sufficiency of evidence. Leave to appeal was refused by the first sift judge and the applicant applied for a review of that decision on various grounds including a new ground of appeal that the Crown acted oppressively when the Crown, having given an undertaking to amend the charges, failed to do so. Here the court refused to grant the application to raise this ground of appeal. The court stated that if the ground had any substance it could have been included in the original Note of Appeal. The court considered that in relation to the factual position provided there was no oppression on behalf of the Crown and whilst something may have happened at the first diet on 6 January 2016 for the applicant to have withdrawn his minute ultimately the issue was not raised again before the trial started and on the information provided to the court here the proposed new ground was unarguable.