Application For Permission To Appeal To The Supreme Court By Patrick Docherty Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lady Smith,Lord Justice General |
| Neutral Citation | [2014] HCJAC 115 |
| Docket Number | XC477/13 |
| Published date | 23 October 2014 |
| Date | 23 October 2014 |
| Court | High Court of Justiciary |
| Year | 2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 115
XC477/13
Lord Justice General
Lady Smith
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY SMITH
in
APPLICATION FOR PERMISSION TO APPEAL TO THE SUPREME COURT
by
PATRICK DOCHERTY
Applicant;
against
HER MAJESTY’S ADVOCATE
Respondent:
For the Applicant: C M Mitchell; John Pryde & Co, SSC, Edinburgh
For the Crown: Prentice QC (Sol Adv), AD; Crown Agent
23 October 2014
Introduction
[1] On 1 March 2005, the applicant was convicted, along with a co-accused, of the murder of a 91 year old woman, in her home in Galston. His two appeals against conviction have both been refused by this court.
The applicant’s appeals
[2] On 26 March 2010, this court refused the applicant’s appeal against conviction on grounds which included the failure of the Crown to disclose a police statement of Sheena Orr; we refer to the Opinion of the Court ([2010] HCJAC 31) for the evidential background, the submissions of parties, the conclusions of the court and reasons for refusing the appeal.
[3] On 30 June 2010, the applicant sought leave to appeal to the Supreme Court; leave was refused. Permission was sought from the Supreme Court; it too was refused, on 18 November 2011.
[4] The applicant then applied to the Scottish Criminal Cases Review Commission (“the Commission”) for review of his conviction. The Commission referred his case to this court on three grounds: (i) the failure of the Crown to disclose police statements of Charles Keer; (ii) the reliance on a piece of evidence from one of the applicant’s police interviews which took place without his having had prior access to legal advice: Cadder v HM Adv [2010] UKSC 43; and (iii) the failure of the trial judge to direct the jury in relation to dock identification.
[5] Regarding the failure of the Crown to disclose Sheena Orr’s police statement, the Commission, referring to the opinion of the court in the first appeal, said – at paragraph 32 of its reasons – that it saw “no reason to disagree with the conclusions of the High Court in this regard”. The Commission noted an argument for the applicant which was, in effect, that the ground relating to the non-disclosure of Sheena Orr’s statement required to be revisited in the light of the non-disclosure of Charles Keers’ statements but was not persuaded that it had any merit (see: Commission’s reasons paras [50] and [51]). The current application fails to acknowledge this. It also suggests that this court concluded that disclosure of Mr Keers’ statements might have given greater emphasis to Sheena Orr’s evidence but that is not correct; the passage referred to (at para [21] of the Opinion of the Lord Justice General) is a summary of counsel’s submissions.
[6] The three grounds referred by the Commission were grounds which, as explained in paragraph 3 of the Opinion of the Lord Justice General of 29 August 2014, senior counsel had sought to lodge on the morning of the hearing of the applicant’s first appeal (3 November 2009). The court refused to receive them for the reasons explained in its opinion: Patrick Doherty v HM Adv [2010] HCJAC 81 at para [6].
[7] No devolution issue minutes were lodged in relation to any of the grounds either before or after 3 November 2009.
[8] On 29 August 2014, this court refused the applicant’s further appeal against conviction. The grounds before the court were those referred by the Commission. We refer to the Opinion of the Lord Justice General ([2014] HCJAC 94) in that second appeal for the details of the submissions of parties, the conclusions of the court and the reasons for refusing the appeal.
The present application
[9] The applicant now seeks leave to appeal to the Supreme Court against the refusal of his second appeal. He advances four grounds of appeal based on: (i) the non-disclosure of a police statement by Sheena Orr; (ii) the non-disclosure of police statements by Charles Keers; (iii) reliance on evidence of one of the applicant’s police interviews : Cadder v HM Adv; and (iv) misdirection by the trial judge, by omission, in relation to dock identification.
[10] The first three grounds of appeal are presented as being convertible...
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