Jamie Hyslop v. Her Majesty’s Advocate [2018] HCJAC 75

Note of appeal against conviction:- On 2 February 2018, at Hamilton Sheriff Court, following a lengthy trial the appellant, along with others, was convicted on indictment of a charge of assault to severe injury and permanent disfigurement and a charge of attempting to pervert the course of justice by setting up a false alibi with the 5th accused. The appellant was sentenced to 3 years imprisonment on the assault charge and 4 months imprisonment on the attempting to pervert the course of justice charge to run consecutively. The appellant appealed against his conviction on the basis that the trial sheriff erred in allowing CCTV evidence to be introduced as ‘additional evidence’ under section 268 of the Criminal Procedure (Scotland) Act 1995, it being contended that the statutory test had not been satisfied. Section 268 of the Criminal Procedure (Scotland) Act 1995 provides that additional evidence may be led where it is prima facie material and that, at the commencement of the trial, either: “(i) the additional evidence was not available and could not reasonably have been made available; or (ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.” The circumstances were that during the trial DC Jacqueline McCann gave evidence that, on the day after the assault, she and the reporting officer, had viewed CCTV footage from cameras near the locus. In evidence DC McCann was asked about the content of the footage and described what she saw, all of which was led without objection. DC McCann wrongly thought that the footage had been lodged, however, it transpired that it had not. The trial was adjourned from 14 to 18 December 2017 to enable the footage to be viewed by all parties and when the trial resumed, motions were made on behalf of a number of the accused, including the appellant, for the trial to be deserted on the basis that the footage was of such materiality that it would have impacted upon the cross-examination of the witnesses already led in evidence. The trial sheriff refused the motions to desert and further subsequent motions for adjournments over the following days for the defence to carry out investigations in relation to the footage. In addition, a number of the co-accused’s solicitors withdrew from acting due to their clients withdrawing their instructions, only for them to be re-instructed and for the trial to continue. The appellant and the fifth accused had failed to appear and warrants for their arrest were granted and on 3 January the agents for the appellant and the fifth accused intimated that their instructions had been withdrawn and withdrew from acting. On 4 January all five accused appeared unrepresented and the fiscal depute moved to lodge the footage as an additional label, in terms of section 268 of the 1995 Act, on the grounds that it was prima facie material evidence which had not been disclosed to the Crown or the defence prior to the trial and that it was in the interests of justice that it be lodged. The sheriff allowed the application and the examination of DC McCann resumed. On 8 January 2018 all the defence agents re-appeared after they were re-instructed. Here it was submitted on behalf of the appellant that whilst the footage was “prima facie material”, it was submitted that it had not been established, in terms of sub-section 268(2)(b), that it had neither been available, nor could it reasonably have been made available, at the commencement of the trial as it had been referred to in the police report to the fiscal’s office and could have been found and lodged. On behalf of the Crown it was submitted that there had been no failure to disclose on the part of the Crown as the fiscal had not been aware of the existence of it until DC McCann gave evidence. It was further submitted on behalf of the Crown that the motion had been made to lodge the footage in fairness to the accused. In addition, secondary evidence had been led about the contents of the footage, without objection and the content of it was not inconsistent with that secondary evidence. Here the court refused the appeal. The court noted that the statutory test had been met in that the footage was prima facie material and, whilst the footage could reasonably have been made available at the commencement of the trial, the materiality of it had not have been foreseen by the Crown as it did not show the identity of the attackers. As such, it was a matter for the discretion of the trial sheriff whether the footage should be admitted in the interests of justice or whether its admission would be unfair. The court considered that the sheriff had not erred as it was in the interests of justice that evidence of such materiality be viewed and any potential prejudice could be cured by witnesses who had been led in evidence being recalled. The court went on to state that, in any event, it could not be said that a miscarriage of justice had occurred given that the contents of the footage had already been described in evidence led without objection.