David Scott v. Her Majesty’s Advocate [2021] HCJAC 22

Note of appeal against conviction:- On 10 May 2018, following a trial at Glasgow High Court, the appellant was convicted of a charge of murder. He was sentenced to life imprisonment with a punishment part of 22 years. The libel was withdrawn against his co-accused during the trial. The appellant appealed against his conviction on the following grounds:- (1) that the trial judge erred in refusing the ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995; and (2) that he was defectively represented in connection with the agreement of a joint minute by his legal representatives. In connection with the alleged lack of sufficiency it was submitted that there was no positive identification of the Nike jacket being worn by anyone when the crime was committed and none of the occupants of the Q5 could be identified from the CCTV footage. The jacket could have been left in the Q5 at any time from October 2016 onwards and a legitimate inference could have been drawn that the appellant’s DNA and that of his girlfriend SL being deposited on the jacket at the same time and there was no suggestion that she was in the car at the time of the shooting hence her DNA must have been deposited prior to the murder. Further, the DNA evidence found on the fragment was insufficient for an inference to be drawn that the appellant was involved in the commission of the crime as it could not be said that the jacket was purpose built for a criminal enterprise distinguishing the case from the circumstances seen in Maguire v HMA 2003 SLT 1307. It was further submitted that no inference of guilt could be drawn in this case because there were four different contributors of DNA albeit the appellant was the major contributor. On behalf of the Crown it was submitted there would be sufficient evidence if one reasonable inference from the presence of an accused’s DNA was that the accused committed the crime and the fact that there were other innocent explanations was immaterial to the question of sufficiency. The appellant’s DNA was deposited on the Nike jacket at some point between October 2016 and the moment the Q5 was set alight and whilst the exact time of the deposit could not be identified, it was reasonable to conclude that the appellant was the main contributor to the mixed DNA sample recovered because he was the last person to wear the garment before it was burned and the burning of the Q5 had been for the purpose of destroying evidence including clothing worn by the perpetrators. In relation to the defective representation ground it was submitted on behalf of the appellant that his legal representatives ought not to have entered 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. It was submitted that the joint minute was factually incorrect and had been entered into without the appellant’s consent. It was further submitted that his representatives had not examined the replica Nike jacket, taken photographs of it or shown it to the appellant and they did not examine the CCTV footage. It was submitted that the decision to agree the joint minute was not a tactical or strategic one made in the proper exercise of professional judgment and it had assisted the Crown to link the appellant with the Q5 and, as such, the appellant was denied a fair trial. Senior counsel who represented the appellant provided information to the court. He stated that generally he did not seek instruction to agree evidence albeit accepted that there had to be an evidential basis to do so and in the case there was such a basis. On behalf of the Crown it was submitted there was an evidential basis for agreeing the joint minute. Here the court refused the appeal. The court considered that there was sufficient evidence and pointed to the CCTV footage, the evidence of Mr Sadiq, that the Q5 was involved in the shooting and that the burning of the Q5 was done with the intention of destroying evidence and the burnt clothing in the Q5 had been worn by the perpetrators. In relation to the defective representation ground the court reiterated that it was unnecessary for senior counsel to take the instructions of the appellant before signing the joint minute. Further, there was an evidential basis for the joint minute being entered into. The court stated that the DNA provided a very powerful case against the appellant and even if the joint minute had not been entered into the court considered that there was no real possibility that the verdict would have been different.