David Scott v. Her Majesty’s Advocate [2019] HCJAC 59

Application to amend a note of appeal:- On 10 May 2018, at Glasgow High Court, the appellant was convicted of the murder of Euan Johnston on 15 November 2016. He was sentenced to life imprisonment, with a punishment part of 22 years. Here the appellant applied to amend a note of appeal which was lodged on 1 April 2019 following the court’s refusal to extend further the time to do so, a Statement of Reasons by the High Court being issued on 22 March 2019. At paragraph 9 of those reasons the court stated:- “The applicant has until the end of this month to lodge his grounds of appeal. There is no reason why those cannot proceed, particularly in relation to insufficiency of evidence and defective representation so far as the failure to lodge an alibi is concerned. These matters can be processed at sift. If it transpires, during the course of this process, that there is force in other grounds, then it is open to the applicant to attempt to amend his grounds of appeal...”. The existing Note of Appeal referred to three areas:- (ground 1) a lack of sufficiency of evidence linking the applicant to the crime in that his DNA, mixed with his girlfriend’s, was recovered from a Nike hoodie, part of which was found in a burnt-out Audi Q5, which those responsible for the murder had used; (grounds 2, 3 and 4) related to defective representation by those instructed:- (i) failing to lodge, despite having been instructed, a special defence of alibi; (ii) agreeing to enter into a joint minute of agreement which included that the hoodies worn by two males shown in CCTV images could not be excluded from being a Nike hoodie and a Russell Athletic hoodie replicas of which had been produced at the trial; and (iii) failing to note that the police officer who viewed the CCTV and compiled a viewing log had described the hoodie, which had been worn by one of the males, as “mid-thigh length”, when the replica Nike hoodie was only waist length; and (ground 5) new evidence in the form of an expert report stating that the replica Nike hoodie was not the same as one worn by one of the suspects as shown in the CCTV images and the failure to investigate this also amounted to defective representation. On 10 June 2019, following receipt of responses from the applicant’s legal representatives at trial, leave to appeal was refused at first sift. No application was made to the second sift and would now be out of time. Here the appellant sought to introduce additional grounds of appeal alleging various things, in particular, defective representation in how the appellant’s trial was prepared for and conducted by those instructed. Here the court refused the application. The court reiterated the approach as set out in Singh v. H.M.A. 2013 SCCR 337 in which it was said “...the court should not permit the addition of new grounds unless they have ‘clear substantial merit’...”. Here the court considered that there was no substantial merit in the proposed grounds of appeal concerning alleged defective representation in the various ways it was alleged. The court reiterated what was said in Grant v HMA 2006 JC 205 about the duties and obligations of those involved in the conduct of criminal cases. The alleged criticisms made by the appellant of those instructed in his defence were considered to be “without practical merit and hence substance” and the application to amend the note of appeal was refused.