Peter Boath v. Her Majesty’s Advocate [2016] HCJAC 81

Note of appeal against conviction and sentence:- On 7 September 2015, at Edinburgh High Court, the appellant was convicted after trial of a charge of assault and abduction and a charge of assault and robbery both relating to events within ‘Subway’ on Leith Walk. In relation to the second charge the appellant had originally been indicted with a co-accused, Alexander Johnston, who pled guilty at a Preliminary Hearing on 24 July 2015 and was sentenced to 5 years and 7 months imprisonment, discounted from 8 years on account of the plea (discount of around 20%). The trial judge sentenced the appellant to 9 years imprisonment. The appellant appealed against his conviction on the grounds of defective representation in relation to preparation for trial, in particular, he argued that reports ought to have been obtained in relation to CCTV and DNA evidence. It was submitted by the appellant that CCTV footage recovered from the locus and a nearby Tesco ought to have been analysed by a defence expert with a view to establishing that the male identified disposing of a distinctive hat and knife in Tesco was not the appellant and similarly that he was not seen in the Subway footage. It was further submitted by the appellant that he had expressly instructed his agents to obtain an independent DNA report to consider the Crown DNA findings, in particular, in relation to the absence of the appellant’s DNA being recovered on the shop assistant’s clothing despite the shop assistant stating that the robber had grabbed him by the collar. Further criticisms were made by the appellant, in particular, according to him, the appellant had wanted to call the co-accused as a witness, and no attempts were made to precognosce the co-accused. In addition, the appellant stated that he had attempted to withdraw his instructions to his legal representatives and contended that he had been asked to sign a disclaimer, which he refused to do. Here the court refused the appeal and referred to the opinion of the Lord Justice Clerk Gill in Grant v. H.M.A. 2006 J.C. 205 in which it was reiterated that for such an appeal to succeed it would be necessary to persuade the court that his defence had not been presented and that he had been deprived of a fair trial because his counsel had either disregarded his instructions or conducted the defence in a way which no reasonable counsel could reasonably have done. The court went on to state that an appeal based upon a defective representation ground cannot be based solely upon a criticism of strategic and tactical decisions reasonably and responsibly made prior to and during the trial. The court considered that in relation to the complaints of the appellant there was no objective support for his allegations in that there was no obvious likely benefit from the CCTV or DNA analysis as suggested by the appellant. In addition, the court considered that the decision not to call the co-accused was justified on the basis that the co-accused had refused to be precognosed and, from information obtained by the appellant’s solicitors, it appeared likely that the co-accused would incriminate the appellant if called to give evidence. In relation to the appellant’s appeal against sentence it was argued by the appellant that the Advocate depute, at the conclusion of the trial, misled the sentencing judge by stating that the appellant had a conviction in the sheriff court in 2005 for assaulting a 91 year old woman by tying her up and stabbing her with a nail file when the conviction referred to was in fact one in the High Court in 2007 and was limited to theft by housebreaking the allegation of violence having been deleted from the charge. The appellant argued that the sentencing judge had regard to the violence exhibited in that conviction and increased the sentence in relation to the present conviction accordingly. In addition, the appellant argued that the sentencing judge made reference to the appellant being on bail and increased his sentence accordingly whereas it had been the co-accused who had been on bail and not the appellant. Here the court allowed the appeal against sentence due to these two factors wrongly being taken into account by the sentencing judge and substituted a sentence of 7 years imprisonment.