John Docherty v. Her Majesty’s Advocate [2016] HCJAC 49

Note of appeal against conviction and sentence:- On 17 June 2014, at Edinburgh High Court, the appellant was convicted after trial of a charge of murder relating to the death of Elaine Doyle in Greenock in June 1986. On 6 August 2014, the appellant was sentenced to life imprisonment with a punishment part selected of 21 years. The appellant appealed against his conviction on the ground that the verdict reached by the jury was unreasonable in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. In addition, the appellant appealed against the punishment part selected on the ground that he should have been sentenced in line with the sentencing practice at the time of the commission of the offence. On behalf of the appellant it was conceded that the test was a very high one albeit it was not insurmountable. A number of criticisms were made of the Crown case and the police inquiry in particular which was described as inept and corrupt. The locus had not been preserved to prevent contamination or cross-contamination and the very small amount of DNA recovered implicating the appellant ought to be viewed in that context. Further criticisms were made of the evidence of Mr B whose evidence had been unduly influenced by the police and was unreliable. In relation to any change in routine by the appellant relied upon by the Crown it was submitted that it was not unusual and the appellnt joining the army when he did was not unexpected given the prevailing economic conditions at the time. It was also submitted that the appellant himself had volunteered his own DNA sample. On behalf of the Crown it was submitted that the test which the appellant had to satisfy was that no reasonable jury could have returned a guilty verdict on the evidence before them and only in the most exceptional cases could an appeal on this ground succeed and this was not such an exceptional case. Here the court refused the appeal and stated that the very high test had not been met. The court described the case against the appellant as being a compelling circumstantial one and pointed to the various pieces of incriminatory evidence including:- (1) the appellant’s DNA was found on tapings taken from the back of the deceased’s body; (2) the appellant was in Greenock town centre at or about the same time as the deceased having both separated from their respective friends; (3) Mr B made a positive identification of the deceased as the female he saw and a reasonably strong resemblance identification of the appellant as the male he saw; (4) a taxi driver saw a person running away from the area in the direction of the appellant’s address wearing a jacket of a type which the appellant had been given by his girlfriend; (5) the appellant pointing out to his workmate of the place where the body was found was suspicious; (6) the appellant’s interest in the deceased’s parents; and (7) the appellant’s subsequent actions in not responding to the plea to come forward as being at the club, his change in social activities and his decision to join the army. The appeal against sentence was also refused. The court stated that it was necessary for a sentencing judge to have regard to current sentencing practice and to the concepts of retribution and deterrence. The court described the murder of the 16 year old deceased as being of “a rare callousness and brutality”.