Darren Hughes v. His Majesty’s Advocate [2024] HCJAC 48

Appeal following a reference from the Scottish Criminal Cases Review Commission:- On 3 February 2002, following a trial at Glasgow High Court, the appellant was convicted of two charges:- (1) an assault on his sister, Ashley Hughes, by entering her flat in Edinburgh uninvited, punching her on the head and kicking her on the body, all to her injury; and (2) assaulting Ryan Farrer by punching and kicking him on the head and body and stabbing him repeatedly, all to his severe injury, permanent disfigurement, to the danger of his life and attempting to murder him. A co-accused, Mark Mitchell, was also convicted of both charges but under deletion of the aggravations and the attempted murder. The appellant was sentenced in cumulo to imprisonment for 9 years. An appeal against conviction on the attempted murder charge, based on a purported error by the trial judge in refusing to admit testimony from the complainer’s sister, on the ground that she had been present in court, was refused (Darren James Hughes v. His Majesty’s Advocate [2022] HCJAC 44). In April 2024, the SCCRC referred the case back to this court on the basis that there may have been a miscarriage of justice because of the existence and significance of evidence which was not heard at the original trial (Criminal Procedure (Scotland) Act 1995, section 106(3)(a)), namely, evidence which was said to be new from Chantelle Tant, the ex-wife of Mark Mitchell, who gave evidence at a hearing and to spoke of threats made by Mark Mitchell to stab Ryan Farrer and to admissions made by him. On behalf of the appellant it was submitted that there was a reasonable explanation why the evidence had not been heard before the court at trial as he was unaware that Mitchell had had conversations with Ms Tant either prior to or after the incident. Further Ms Tant had not provided a statement to the police at the time of the incident and for these reasons it was submitted the requirements of section 106(3A) were met. It was submitted that critical issues for the jury at trial were the credibility and reliability of those involved and in reaching their verdict the jury had evidently accepted Mr Mitchell to be a credible witness and preferred his evidence to the evidence of the appellant and Ms Hughes and Ms Tant’s evidence was likely to have had a considerable bearing upon the jury’s assessment of those individuals and it was reasonable to conclude, having regard to the test set out in Al Megrahi v. HMA 2022 JC 99, that the verdict of the jury, reached in ignorance of its existence, amounted to a miscarriage of justice. On behalf of the Crown it was submitted that there was no reasonable explanation why the evidence had not been adduced at trial, that the evidence of Ms Tant was not so significant that a miscarriage of justice had necessarily occurred and even if the fresh evidence had been admitted the jury would not have been bound to acquit. Here the court refused the appeal on the basis that the requirements of section 106(3A) were not met as there was no reasonable explanation why the appellant did not alerted his solicitors to Ms Tant’s existence to enable them to carry out investigations which would have disclosed the relevant evidence. Consequently, the court did not go on to consider the significance of Ms Tant’s evidence. In a postscript to the opinion the court queried why the SCCRC had failed to recognise that the appellant had been present when Mitchell spoke to Ms Tant having regard to two parts of Ms Tant’s interview which would have impacted upon whether the requirements of section 106(3A) could be met.