Appellant: Shead; Paterson Bell Ltd (for William McCluskey, Glasgow)

Respondent: Bain QC, AD; the Crown Agent

14 March 2011

1. The Trial

[1] On 31 August 2010, after a two day trial at the High Court in Glasgow, the appellant was unanimously found guilty of the attempted murder of WMcA by repeatedly kicking and stamping on his head and body in Shipbank Lane, Glasgow, on 11 September 2008. Two other persons had previously pleaded guilty to involvement in the attack.

[2] The Lane is adjacent to the High Court and is covered by Closed Circuit Television. Recorded images of the attack and its aftermath were recovered and shown to the jury. Still photographs were also produced from the images. The images had been viewed by the appellant and his representatives as early as 19 May 2010, prior to a Preliminary Hearing held on that date. That Hearing had been continued until 26 May 2010, when it was stated by counsel for the appellant, who later represented him at the trial, that there were no preliminary pleas, issues, applications or objections to the evidence to be advanced.

[3] In the CCTV images, one person, wearing light coloured clothes, can be seen walking away from the scene towards the camera. At the trial, the date of which had been fixed at the continued Preliminary Hearing, the victim was not capable of identifying any of his assailants. However, on 25 September 2008 a local police officer, DC, who knew the appellant, had been asked to look at the images. He identified the appellant in court, and named the other two attackers, as being the three assailants shown in the images. The officer explained that the appellant was relatively distinctive in appearance, being some 6' 4" tall, of stocky build with a bald shaved head. The appellant habitually wore white clothing and had a particular gait, which could be seen in the images of the person walking away from the scene. Another police officer, SO, had also been asked to look at the CCTV and still images on 24 September 2008 (ie before DC). She too knew the appellant and, for reasons similar to those of her colleague, identified him at the trial as the man shown wearing the light coloured clothing and walking towards the camera.

[4] The line of defence at the trial had been to challenge the reliability of the identification evidence. This was done by exploring the quality of the images and stressing that it was not of the best. For example, the eye colour, shape and colour of hair, nose profile, ear lobe size, presence of facial moles and precise height of the man walking away could not be made out. It was suggested to the second officer that she had discussed her identification with her colleague and she had eventually agreed with that.

[5] The appellant, who had been arrested on a warrant only on 19 January 2010, had given evidence. He had denied being the person shown in the CCTV images. He had maintained that there were plenty of other tall, shaven headed men in Glasgow.

[6] The appellant's counsel had made a submission at the conclusion of the evidence to the effect that no reasonable jury could return a verdict of guilty and that the case should be withdrawn from the jury's consideration. Such a submission, as distinct from one based on sufficiency of evidence, was not one which the trial judge could have sustained. But, in any event, it was repelled on its merits and the trial judge proceeded to give the jury the customary directions on the need to take particular care in the assessment of identification evidence.

2. The Appeal

[7] On 4 November 2010, the appellant lodged a Note of Appeal. The Note is in the following terms:

"(1) The verdict of the jury was one which no reasonable jury, properly directed, could have returned having regard to

(a) the poor quality of a video recording (... Label 2) and photographic stills taken therefrom (...Production Number 8), in respect of which two police officers, who were not otherwise witnesses to the crime, testified that, having viewed same, they could identify the appellant with one hundred per cent certainty as one of the perpetrators of the crime shown therein; and

(b) the absence of any other evidence linking the appellant with the crime.

(c) The failure of the evidence in the Crown case to reach a "base line" of quality (McDonald v HM Advocate 2010 S.C.C.R. 619)".

The Note of Appeal is signed by the counsel who represented the appellant at the trial. It presents a clear proposition which, if accurate, would result in the appeal being sustained in terms of section 106(3)(b) of the 1995 Act. Leave to appeal was granted on the ground stated by a single judge at first sift on 21 December 2010.

[8] In terms of Rule 15.15A of the Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996 No 513) (as amended by the Act of Adjournal (Criminal Procedure Rules Amendment No 2)(Presentation of Conviction Appeals in Writing) 2010), an appellant has 42 days from the granting of leave to appeal in which to lodge a written case and argument setting out a succinct and articulate statement of the facts founded upon in respect of his ground of appeal and the proposition of law being advanced. Although not bearing any heading describing its content, other than a reference to Rule 15.15A, the court was assured that a document lodged by the appellant on 1 February 2011 constituted his written case and argument. It is the court's current practice to assign Procedural Hearings in all appeals where such a case has been lodged, with a view to ensuring compliance with the rules and to ascertaining whether any further matters require attention prior the allocation of the appeal to a hearing. Such a Procedural Hearing was fixed for 18 February 2011.

3. The Additional Grounds and Application for Transcription

[9] On 15 February 2011, almost six months after the conclusion of the proceedings at first instance, the appellant lodged two documents. The first is headed "Additional Grounds of Appeal". This complains of a miscarriage of justice based first upon the following:

"2. No contemporaneous record of the identifying officers viewing of the video recording...and photographic stills taken therefrom... was kept or, if kept, disclosed to the defence or led in evidence by the Crown. Accordingly it was not possible for the jury properly to assess the reliability of the purported recognition on viewing the images. In the absence of such a record the procedure by which recognition was purportedly achieved was flawed and inadequate. Reference is made to R v Smith and others [2009] Cr. App R 36 per Lord Justice Moses at paragraphs 67-71".

Although this complaint is not of itself said to have resulted in an unfair trial, the ground continues by alleging that the respondent had acted incompatibly with the fair trial requirement in Article 6 of the European Convention by seeking a conviction based upon the evidence of identification adduced at the trial. The document continues (paragraph 3) to complain of inadequate directions by the trial judge in relation to the absence of a record of the police officers' initial viewings. The second document is the intimation of an intention to raise a "devolution issue" based upon the proposition regarding the respondent's actings in seeking a conviction.

[10] The appellant's application to allow the Note of Appeal to be amended in terms of the additional grounds was continued to a quorate hearing of the court on 25 February 2011. The appellant was requested to provide a note outlining the reasons for the lateness of the additional grounds. Prior to that hearing, a document headed "Opinion of Counsel" was lodged. This stated that counsel appearing at the Procedural Hearing ("new counsel") had been instructed in late January 2011 to revise the case and argument already drafted by the trial counsel. At that time, the new counsel concluded that the additional grounds were required and these were drafted by the trial counsel along with the devolution minute, both of which were then revised by the new counsel. The Opinion states that paragraph 2 of the Additional Grounds does not raise any issue of "admissibility" but one of whether the reliance on the evidence deprived the appellant of his right to a fair trial.

[11] In oral submission, the new counsel explained that the appellant was dependent on his advice and that it had been his function to review the papers and to revise the case and argument. There was no reason proffered for the lateness of the additional grounds beyond that they were considered appropriate by the new counsel subsequent to his instruction. It was submitted that a refusal by the court to allow the Note of Appeal to be amended in their terms would amount to a breach of Article 6. It would be, it was argued, manifestly unlawful to refuse to allow the amendment and to deny the appellant access to the court.

[12] Meantime, by letter dated 23 February 2011, the appellant applied in terms of section 94 of the 1995 Act for the transcription of the evidence of the two police officers on the basis that the new counsel considered that it would "assist the proper preparation and presentation of the appeal against conviction". During oral submissions, the appellant was asked to provide a reason why it was thought that transcription of the evidence was necessary or desirable given the terms of the judge's report on the evidence. The appellant maintained that transcription was needed for new counsel's use as he (counsel) did not know what the evidence had been. The court understood that trial counsel also remained instructed in the case and enquired whether he could inform the new counsel of the content of the evidence. It was said that he could not. The appellant was unable to explain what matters in the evidence could only be established by a consideration of a transcription, as distinct from reference to the evidence as recalled by trial counsel. When pressed further, the appellant asserted that it was normal practice for transcription to be ordered in the circumstances, but he would not give any further explanation. Although the court invited the appellant to withdraw the application pending the formulation of a coherent reason for a transcription, the application was pressed as it stood.

4. Decisions

[13] The court refused to allow the Note of Appeal to be amended. The 1995 Act is generous in the time that it affords appellants to consider and formulate grounds of appeal. In particular, after the necessary lodging of a Notice of Intention to Appeal within two weeks of the final determination of the case, a convicted person has eight weeks in which to prepare his Note of Appeal (section 110(1)). Indeed, in this case, the appellant must have taken up almost all of the allocated time. The statutory scheme envisages that, by the end of the period, a convicted person will have lodged a Note containing "a full statement of all the grounds of appeal" (s 110(3)(b))(emphasis added). The idea is that an appellant, having had adequate time for preparation, will not be allowed to argue any other grounds without leave of the court (s 110(4)). That leave ought to be the exception rather than the rule. It is, in practice, sought by seeking leave to amend the Note of Appeal in terms of Rule 15.15 (1) of the Act of Adjournal (supra). The normal procedure, which follows the grant of leave to amend, is that a new report from the trial judge on the amended grounds will be requested (Rule 15.15. (2)). On receipt of the report, the appeal will revert to the stage of first sift (Rule 15.15 (4) and see Practice Note No 2. of 2010)

[14] In determining whether to allow an amendment to a Note of Appeal, the court must, of course, have firmly in mind the need to ensure that a convicted person's right to a fair trial (including, where permitted, an appeal) in terms of Article 6 of the European Convention is adequately protected. Within that context, however, the court must have procedural rules, which all appellants can take advantage of but with which they must also be expected to comply, to ensure that all appeals are dealt with efficiently and fairly. Reasonably enforced procedural rules and practices are essential components of a fair and expeditious appellate process. Such a process is, in turn, a core element of a criminal justice system that works effectively to ensure the protection of those who are subject to its procedures and to promote the interests of justice. An erratic and haphazard system is inimical to these interests and the rights of those involved.

[15] Given the time afforded to an appellant to consider and formulate his grounds of appeal, it should only be in exceptional cases that leave to amend ought to arise as an issue at all and thereafter be permitted. This is in part because of the disruption which such an amendment almost inevitably causes to the progress of the particular appeal and to appeals in general. The appeal process requires to be halted and the case remitted to the trial judge to report (months after the final determination of the case) on the amended grounds. The issue of leave on these grounds requires to be considered at first, and perhaps at second, sift. Meantime, the period, which is again generous, within which the written case and argument ought to have been lodged will be extended. Alternatively a further such case will require preparation and lodging in the event of leave being granted on the amended grounds. The orderly conduct of other appeals and the appellate business of the court in general will be disrupted.

[16] There are many considerations which may be taken into account in determining whether to grant leave to amend. One is the apparent strength of the proposed amended ground. The stronger it is, the more probable it will be that the court will exercise its discretion to allow amendment. But the background to the late presentation of the ground is also a consideration. If the point sought to be raised is one which was not focussed, as it might have been, at first instance, it is less likely that the court will be sympathetic to its introduction outwith the statutory time limits. The cogency of the reason for the point not having been included in the original Note of Appeal is also a factor. But change of counsel should not normally be regarded as affording an advantage to an appellant seeking to expand the scope of his appeal.

[17] The timing of the application for amendment is a factor. In the context of the relatively new procedure for the written presentation of appeals, the making of an application after the time for lodging the written case and argument has expired is unlikely to be regarded as satisfactory in all but the most exceptional of circumstances.

[18] The proposed new ground seeks to introduce at the appeal stage aspects of English police procedure contained in the Codes of Practice generated after the enactment of the Police and Criminal Evidence Act 1984 in that jurisdiction. The point sought to be made is that it is unfair to an accused for a police officer to give evidence of identification from a CCTV image where there is no record, or no disclosure of the record, of his reaction upon first seeing the CCTV recording. Such an argument has not, so far, found favour with the Scottish courts and, as such, should not be classified as a particularly strong basis for an appeal. But, in any event, it is a point concerning the fairness of the trial, which could have been taken as a preliminary plea, namely one in bar of trial, at the pre-trial Preliminary Hearings (supra). This was not done; the appellant having specifically stated that there were no preliminary pleas etc. to be taken. At the latest, subject to the grant of leave under section 79 of the 1995 Act, any submission concerning the fairness of the trial could have been made at the trial diet, when the facts might have been explored in cross-examination. That was not done, nor was the matter raised in the subsequent Note of Appeal. It has therefore not been commented upon by the trial judge in her report nor considered during the sifting procedure for leave to appeal. In these circumstances, the court does not consider that, in the context of a reasonably and properly operated appeal process, it should allow what is a new point to be raised at this stage, coming, as it does, after the expiry of the period for the lodging of the written case and argument.

[19] So far as the raising of a devolution issue is concerned, similar considerations apply. The Act of Adjournal provides that, in the context of proceedings on indictment, notice of such a point ought to have been given not later than seven days after the service of the indictment (Rule 40.2). No cause has been shown as to why that was not done (see Rule 40.5).

[20] Transcription of evidence is required where there is a dispute about the content of the testimony of a witness. In the ordinary case, the trial judge will have provided a report setting out, in general terms, what the evidence against an appellant consisted of. The report ought also to have set out any particular details of testimony which bear upon a particular ground of appeal (1995 Act s 113). In that regard, the trial judge ought to have notes of the evidence and can listen to the audio recording (s 93), if his notes appear inadequate to deal with a specific complaint. Parties, who are legally represented at trial, are expected to know what the testimony of the witnesses has been. Their representatives ought to have their own notes, so far as they can be taken in practical terms, especially in cases tried in the High Court where both parties tend to have more than one representative in attendance. In these circumstances, a bald statement that a particular counsel, whom a party has elected to instruct for an appeal but who was not present at the trial, wishes transcription of the evidence is not normally a sufficient ground for ordering that transcription. A party's decision to instruct counsel and/or agents who were not present at the trial does not, in the ordinary case and without further explanation, provide him with an advantage in an application for transcription.

[21] In this appeal, there is an entirely adequate report from the judge which sets out the evidence of the police officers. No issue is taken with the content of the judge's report as being inaccurate or inadequate. In addition to the new counsel, trial counsel continues to be instructed in the appeal. He ought to be aware of the testimony given at trial without recourse to a transcription. In these circumstances and in the absence of any other reason being advanced, the application for transcription was refused. However, in addition, it is important to note that, where transcription is required or desirable, the statute provides that any application is to be made within 14 days of the grant of leave to appeal (1995 Act s 94(2C)). This is an especially important provision now; given that it ought to dovetail with the new provisions regarding the production of a written case and argument within 42 days of the grant of leave to appeal. The case and argument ought to contain any references to passages in a transcription necessary for the proper presentation of the appeal. If there is a delay in the application for transcription, that is likely to prompt a further delay in the lodging of the case and argument and, ultimately, the progress of the appeal. No cause was shown in this case for allowing a late application for a transcription of the testimony of the police officers. That too was a reason for the refusal of the application.