Campbell (Thomas) v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 10 February 1998 |
| Neutral Citation | 1998 SCCR 214 |
| Date | 10 February 1998 |
| Docket Number | No 17 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord McCluskey and Lord Sutherland
Procedure—Solemn procedure—Appeal—Evidence—Additional evidence—Incriminating evidence at trial from socius—Socius later claiming evidence was perjured because of police pressure and inducements—Whether reasonable explanation for socius's change of evidence—Whether explanation supported by socius's sister's evidence that socius was involved in crime but released and never prosecuted for it—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 106(3C), (3D)1
Procedure—Solemn procedure—Appeal—Secretary of State's referral of case to appeal court—Pannel having unsuccessfully appealed on ground of insufficiency of evidence—Whether appeal court limited as to type of question competent in second appeal—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 124(3)1
Procedure—Solemn procedure—Appeal—Evidence—Additional evidence—Witness cited for co-accused but not called by pannel at trial—Witness's evidence undermining principal Crown witness's credibility—Whether reasonable explanation for evidence not being heard at trial—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 106(3A)1
Evidence—Sufficiency—Corroboration—Statement of pannel—Crown case that pannel instigated attack—Pannel admitting involvement to police—Socius stating pannel thanked him for his involvement after attack—Whether expressing thanks was evidence of incriminating conduct rather than admission of guilt—Whether socius's evidence corroborative of pannel's admission
Section 124(3) of the Criminal Procedure (Scotland) Act 1995 enacts,inter alia, that the Secretary of State, on consideration of any conviction, may, whether or not an appeal against conviction has previously been heard and determined by the High Court, refer the whole case to the High Court “and the case shall be heard and determined, subject to any direction that the High Court may make, as if it were an appeal under this Part of this Act”.
Section 106(3) of the 1995 Act, as amended by the Crime and Punishment (Scotland) Act 1997, enacts, inter alia, that a person may appeal on the ground of a miscarriage of justice which may include a miscarriage based on the existence and significance of evidence which was not heard at the original trial. Subsection (3A) enacts that evidence may found an appeal only where there is a reasonable explanation of why it was not heard at the trial. Subsection (3C) enacts that where the fresh evidence is from a person who gave evidence at the trial and is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given at the trial, which explanation is itself supported by independent evidence. Subsection (3D) enacts that “independent evidence” means evidence which was not heard at the original trial, is from a source independent of the person who now changes his evidence and is accepted by the appeal court as credible and reliable.
In October 1984 the pannels, C and S, were found guilty of murder, C also being convicted of serious assault. The Crown relied on the evidence of a socius, L, who stated that he had overheard a conversation involving C,S and three other persons who were charged along with C and S. C and another man
spoke about setting fire to the door of the deceased's house to give him a fright. S was listening to and agreeing with what was being said. The Crown also led evidence from L, on the serious assault charge, that he had driven a car to the locus where an icecream van window had been blasted with a firearm and that, after the shooting, C had thanked L for doing the “message” for him. The Crown relied on that evidence to corroborate police evidence of C's admission of involvement in the shooting. Appeals on the ground of insufficiency of evidence were refused in 1985. In 1996 the Secretary of State referred the pannels' case to the appeal court under sec 124(3). The pannels lodged grounds of appeal contending that there was insufficient evidence to support the convictions and that there was fresh evidence from L who now maintained that he had lied at the trial because of police pressure and inducements, as well as fresh evidence from L's sister who had been cited but not called at the trial, that she had seen L commit the shooting but that he had been released by the police and had never been prosecuted for the crime. The Crown opposed the ground of appeal based on insufficiency evidence as incompetent because it had been raised and determined in 1985.Held (1) that the appeal court was not limited as to the type of question which could competently be entertained where that question had previously been the subject of hearing and determination by the court, the only question being whether a larger court was required; (2) that the appeals did not raise any question as to whether the previous decision was based on a wrong interpretation of the criminal law which would be binding on the appeal court unless overruled so there was no need for a larger court to be convened; (3) that evidence of what C had said to L after the attack was evidence of incriminating conduct on C's part, not an admission of guilt, and could corroborate his admission to the police; (4) that where it was proposed to lead evidence as to the reasonable explanation under subsec (3A), the initial question for the appeal court was whether, on the information which it had been given about the proposed evidence, it could provide a reasonable explanation satisfying the terms of subsec (3A) and as there was no explanation for L's sister not being called at the trial, her evidence was not admissible on appeal; (5) that subsec (3C) imposed a requirement for “a reasonable explanation” which was separate from that imposed by subsec (3A) and that explanation, not the content of the different evidence, required to be supported by independent evidence under subsec (3D); (6) (per Lord McCluskey and Lord Sutherland) that L's explanation for not giving the evidence which was now tendered was not unreasonable; but (7) (Lord McCluskey diss) that L's sister's evidence was unable to provide independent support for the proposition that L had given false evidence as a result of alleged pressure and inducements or that L would have wished to minimise his own involvement in the shooting; and appeals refused.
Observed (1) (per the Lord Justice-Clerk (Cullen) and Lord Sutherland) that it was one thing for the independent evidence to provide support for the content of the different or additional evidence and another thing for it to provide support for the explanation itself; (2) (per the Lord Justice-Clerk (Cullen)) that the ground set out in sec 106(3)(b) of the 1995 Act was not relevant to an appeal based on evidence which was not heard at the trial; (3) (per the Lord Justice-Clerk (Cullen)) that it would seldom if ever be a reasonable explanation for not calling a witness that the risk of calling him was at the time considered to be too great and counsel advised that he should not be called; and (per Lord Sutherland) it would be contrary to the interests of justice to permit such evidence; and (4) (per the Lord Justice-Clerk (Cullen)), that assuming L's explanation was genuine, it was arguable that it provided a reasonable explanation for his having failed to give a true account at the trial.
Opinion reserved (per the Lord Justice-Clerk (Cullen) and Lord Sutherland) whether, when a retrial had become impossible, the appeal court should not quash the conviction simpliciter unless it was satisfied that if the jury had heard the new evidence it would have come to a different result; and (2) (per the Lord Justice-Clerk (Cullen)) whether the relevant test for the appeal court to apply was set out in Cameron v HM AdvocateSC1991 JC 251 in preference to Church v HM Advocate (No 2) 1996 SLT 383.
Thomas Campbell and Joseph Steele were charged along with five other persons on an indictment at the instance of the Right Honourable The Lord Cameron of Lochbroom, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, attempted murder committed on 29 February 1984 (charge 9) and murder in respect of six members of a family on 16 April 1984 (charge 15). The pannels pled not guilty and proceeded to trial in the High Court of Justiciary at Glasgow before Lord Kincraig and a jury between 3 September 1984 and 10 October 1984. After trial Campbell was found guilty of assault to severe injury and the danger of life in respect of charge 9 and both pannels were found guilty of murder by a unanimous verdict.
The pannels thereafter appealed to the High Court of Justiciary against conviction. The appeals were refused in 1985.
The Secretary of State for Scotland subsequently referred the case to the High Court of Justiciary.
Cases referred to:
Advocate (HM) v McCannSC 1977 JC 1
Beattie v HM AdvocateSC 1995 JC 33
Boyle, Petitioner 1993 SLT 1085
Brady v HM AdvocateSC 1986 JC 68
Brodie v HM AdvocateSC 1993 JC 92
Cameron v HM AdvocateSC 1991 JC 251
Church v HM Advocate (No 1) 1995 SLT 604
Church v HM Advocate (No 2) 1996 SLT 383
Docherty v HM AdvocateSC 1987 JC 81
Elliott v HM AdvocateSC 1995 JC 95
Fox v HM AdvocateSC 1998 JC 94
Gallacher v HM AdvocateSC 1951 JC 38
Green v HM AdvocateUNK 1983 SCCR 42
Higgins v HM AdvocateSC 1956 JC 69
McCormack v HM AdvocateSC 1993 JC 170
MacDonald v HM AdvocateUNK 1997 SCCR 116
MacKenzie v HM AdvocateUNK 1995 SCCR 141
Mackie v HM AdvocateSC 1994 JC 132
Maitland v HM Advocate 1993 SLT 645
Mitchell v HM AdvocateUNK 1989 SCCR 502
Moffat v HM AdvocateUNK 1983 SCCR 121
O'Hara v Central SMT CoSC 1941 SC 363
Preece v HM AdvocateUNK [1981] Crim LR 783
R v Shields and PatrickUNK [1977] Crim LR 281
Reilly v HM AdvocateUNK 1986 SCCR 417
Salusbury-Hughes v HM AdvocateUNK 1987 SCCR 38
Simpson v HM AdvocateSC 1952 JC 1
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