Michael Tupper v. Her Majesty’s Advocate [2016] HCJAC 21

Application under section 107(8) of the Criminal Procedure (Scotland) Act 1995:- On 12 January 2015, at Glasgow High Court, the appellant was convicted after trial of various charges of physical and sexual violence perpetrated against three former partners over a decade. The appellant sought to appeal against his conviction on the grounds of alleged defective representation. In relation to the first complainer it was contended that the appellant’s solicitors had failed to recover documents in relation to civil proceedings which had not mentioned any complaints of sexual abuse and also in relation to a failure to use certain photographs of one of the loci. In relation to the second complainer it was contended that there was a failure to call certain defence witnesses to whom the complainer had admitted enjoying anal intercourse and a failure in not using Facebook pages which could show a friendship between the first two complainers. In addition, there were criticisms made regarding a failure to call the appellant’s father who could speak to false allegations which has been made in the civil proceedings, and failings in tracing and calling the complainer’s uncle. At the first sift the application for leave to appeal was refused on the basis that there was no arguable ground of appeal. At the second sift the judges agreed and stated that the test for defective representation as set out in Grant v HMA 2006 J.C. 205 (at para 21) had not been made out. Here under section 107(8) of the 1995 Act the applicant sought to found upon a ground of appeal for which leave had not been granted and it was submitted that the second sift judges applied the test in Grant too strictly as the material ought to have been recovered and used at the trial and in the absence of the relevant evidential material trial counsel had not been in a position to make the appropriate strategic decisions. Here the court refused the application. The court observed that the application was not and could not be a form of appeal against the decisions on leave to appeal at sift which decisions are final at that stage of the proceedings. For an application under section 107(8) to succeed it would be necessary for the applicant to demonstrate good reason to justify the resurrection of rejected grounds, for example, an error or misunderstanding on the part of the sifting judges, or a ground of appeal was so important that it would be contrary to the interests of justice to exclude it. The court considered that in the present case the applicant was simply seeking to challenge the second sift judges’ decision and the test in Grant was applied properly and the application was refused.