Her Majesty’s Advocate v. Jason Gilmour [2019] HCJAC 74

Crown appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant appealed against a decision of the Preliminary hearing judge that the Crown is barred from prosecuting the respondent for murder as a consequence of the appellant’s acceptance of a plea on 4 September 2012 to a charge of aggravated assault of the complainer who has since died. The libel of the murder charge included averments that the respondent assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017. In 2012 the respondent had appeared on petition charging him with attempted murder. The respondent offered to plead guilty to an aggravated assault by repeatedly punching him on the head, causing him to fall to the ground and repeatedly kicking and stamping on his head, all to his severe injury, permanent impairment and to the danger of his life by the submission of a section 76 letter which was accepted. The respondent was sentenced to a custodial sentence of 5 years and 4 months discounted from 8 years to reflect the plea of guilty. Following service of the murder indictment a preliminary issue minute was lodged contending that the Crown was personally barred from proceeding against the respondent on a charge of murder albeit a charge of culpable homicide would remain open. Following a debate at the Preliminary Hearing the minute was upheld and the Crown appealed. It was submitted on behalf of the appellant that whilst it was accepted that the Crown could not proceed on a charge of attempted murder in a second indictment it did not prevent the Crown proceeding on a charge of murder as murder and attempted murder were different crimes. It was further submitted that the acceptance of the plea could not operate as a clear renunciation of the right to prosecute for murder. It was submitted that the death of the complainer amounted to a new crime as the crime of murder was distinct from the crime of attempted murder. The crime of attempted murder was a form of aggravated assault aggravated by a particular mens rea. It was further submitted that the particular circumstances that existed did not amount to an unequivocal and unqualified renunciation of title to prosecute a charge of murder in that what was required was “an unequivocal and unqualified announcement on behalf of the Crown” as described in Thom v HMA 1976 JC 48. It was submitted that whilst murder ad attempted murder had the same mens rea it dd not mean that the acceptance of the plea amounted to an unequivocal and unqualified announcement by the Crown not to prosecute for murder in the event that the complainer subsequently died. It was submitted on behalf of the respondent that the Crown’s acceptance of a plea to aggravated assault amounted to an unequivocal and unqualified renunciation of the right to prosecute the respondent for murder. It was submitted on behalf of the respondent that in previously accepting that the assault fell short of a murderous attack the Crown was then barred from seeking to prosecute for murder at a later point. Here the court allowed the appeal. In relation to the question of res judicata the Double Jeopardy (Scotland) Act 2011 changed the position. Now as a result of the 2011 Act applying section 11 to the present circumstances a prosecution can follow if:- (i) the accused was convicted or acquitted of an offence involving physical injury to another person; and (ii) that other person subsequently died, apparently from that injury. Given that both of these tests are met a prosecution under section 11 would be competent. The court stated that the only basis upon which a bar to prosecuting the respondent for murder was the argument that the plea tendered and accepted by the Crown amounted to a renunciation of the right to bring a prosecution for murder in the event that the victim of the assault later died.  The court noted that the strongest support for the proposition came from Tees v HMA 1994 JC 12 where the accused had pled guilty to a charge of assault under deletion of attempted murder and was re-indicted for culpable homicide when the victim died and the Lord Justice Clerk (Ross) giving the opinion of the court said:- “The Crown appreciated that, having accepted a plea of guilty to the earlier indictment under deletion of the reference to an attempt to murder, they could not now properly [emphasis added]charge the appellant with the crime of murder, and accordingly the present indictment charges him with culpable homicide.”  Here the court stated that it was satisfied that the subsequent death created a new situation. The court stated that assault is a crime of intent and cannot be committed recklessly whereas murder does not require intent and may be established by actings which imply wicked and gross recklessness. The court was not willing to accept the submission by the appellant that attempted murder is simply an aggravated assault but nevertheless was satisfied that the crimes of murder and attempted murder are sufficiently distinct, so that an act which may operate as a renunciation of the right to prosecute attempted murder precludes a subsequent prosecution for murder. The court makes clear that a renunciation of the right to prosecute a charge of murder can be established only by the clearest statement possible in unequivocal terms and cannot be created by inference or implication.