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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Beggs v. Her Majesty's Advocate [2005] ScotHC HCJAC_131 (25 November 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_131.html Cite as: [2005] ScotHC HCJAC_131, [2005] HCJAC 131 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Macfadyen Lord Abernethy
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[2005HCJAC131] Appeal No: XC997/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 by WILLIAM BEGGS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Ms. M. Scott, Q.C., Ms. C. Mitchell; McClure Collins, Edinburgh
Respondent:
J. Beckett, Q.C., A.D.; Crown Agent25 November 2005
[1] The appellant was convicted of a charge of murder. The charge of which he was convicted also included allegations that he had committed sodomy on the deceased and that he had dismembered his body and disposed of the dismembered parts at two places in Scotland. The appellant was sentenced to life imprisonment, with a punishment part set at 20 years. [2] The note of appeal which was lodged on his behalf contained nine grounds of appeal, set out in elaborate terms. The outcome of the sift procedure under section 107 of the Criminal Procedure (Scotland) Act 1995 was that the appellant was granted leave to appeal against conviction and sentence. From the comments made by the first sift judge it can be inferred that he considered that only the sixth, seventh and ninth grounds, and parts of the first and second grounds, were arguable. Accordingly they may be treated as specified by him for the purposes of subsection (7) of section 107. For the reasons given in the opinion of the court dated 8 December 2004 (Beggs, Petitioner 2005 J. C. 174) an application to the second sift under subsection (4) of section 107 was incompetent. In these circumstances application has been made to the court on behalf of the appellant under subsection (8) for leave to found his appeal on the grounds of appeal and the parts of the grounds of appeal which were not specified by the first sift judge. [3] Subsection (8) of section 107 states:"Where the arguable grounds of appeal are specified by virtue of subsection (7) above it shall not, except by leave of the High Court on cause shown, be competent for the appellant to found any aspect of his appeal on any ground of appeal contained in the note of appeal but not so specified".
For the purposes of this application it is necessary for us to consider the significance of the requirement that the leave of the court is to be "on cause shown". It is clear the general purpose of the sifting under section 107 is to avoid the time of the court being taken up with frivolous or unmeritorious appeals. From the discussions in Parliament to which we were referred it is clear that there was also concern lest some of the grounds of an appellant who was granted leave to appeal might be without merit. This was sought to be avoided by the introduction of a provision for specification which, subject to the leave of the court on cause shown, would determine the extent to which the grounds in the note of appeal which could be founded on. However, the Parliamentary discussions do not throw any light on the meaning of expression "on cause shown".
[4] The requirement for cause to be shown appears to have been intended to place some restriction on the circumstances in which an appellant may rely on a ground of appeal which has not been specified under subsection (7). The Advocate depute, whom we invited to assist the court, submitted that more than arguability was required. The appellant might be able to found, for example, on a change of circumstances, the gravity of the charge or the fact that the arguable grounds of appeal had been specified by the second sift judges. He said that it would be difficult to generalise beyond saying that there would require to be a good reason in the interests of justice. On the other hand, Ms Scott submitted for the appellant that it was important to note that an appellant who had been refused leave to appeal by the first sift, was not required for the second sift to show cause why he should be granted leave to appeal. While the second sift judges had before them the reasons for refusal, the matter of leave to appeal was considered afresh. If, on the other hand, an appellant was granted leave, but only certain of his grounds of appeal were specified as arguable, it might be questioned why leave to found on other grounds should be subject to some restriction over and above their arguability. She submitted that when considering an application under section 107 (8) the court had a wide discretion, and was able to take a broad view of the matter. Since it was not a review of a decision it was not necessary for the court to identify respects in which there had been error on the part of the sifting judge or judges. She also emphasised that it was only after the first sift that an appellant was in a position to make observations on the report of the trial judge. [5] It is understandable that, if an appellant has already been granted leave to appeal, he should be required to show cause as to why he should be able to rely on a ground of appeal which has not been specified under subsection (7). In our opinion he requires to satisfy the court that there is a good reason why he should be given leave to rely on it. No doubt it is implicit that such a ground of appeal would have to be arguable. However, it is plain that this of itself is not the test: it is not simply a matter of asking the court to reconsider the question of the arguability of the ground of appeal. What may constitute a good reason will depend on the circumstances of the case. It might, for example, be founded on a change of circumstance or on some patent error or misunderstanding of the grounds of appeal on the part of the sifting judge or judges. It might be founded on the fact that a ground of appeal not specified as arguable was properly to be seen as inextricably bound up with one which was so specified. It might, in a case where leave was granted at second sift, be founded on an appearance that the second sift judges had not taken into account additional material submitted at the second sift stage bearing on the reasons given by the first sift judge for not specifying the ground in question as arguable. It might be founded on the consideration that the ground of appeal is of such significance that it would not be in the interests of justice for it to be excluded from consideration in the appeal. [6] We turn now to the grounds of appeal, and the parts of the grounds of appeal, which the first sift judge did not considered to be arguable in the present case. In view of our decision in regard to these matters, we will give our reasons briefly. [7] The essence of the first ground of appeal is that the appellant was convicted and sentenced on the basis that he committed acts of sodomy and dismemberment, which were not offences in respect of which he was convicted, whereas article 14 of the European Convention on Extradition provides that a person who has been extradited "shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence... for any offence... other than that of which he was extradited...". The first sift judge considered that one of the paragraphs of this ground of appeal was not arguable in respect that it was adequately dealt with in the ninth ground (which relates to the appeal against sentence), and that the issue raised in others had been dealt with in the opinion of the appeal court dated 17 August 2001 before the trial (which affirmed the decision of Lord Wheatley to refuse to exclude allegations as to dismemberment - 2001 S.C.C.R. 836 at paragraphs 15 -17 ). [8] Ms Scott pointed out that the court in the Netherlands which had granted the application for the extradition of the appellant had specifically excluded the charge of attempting to pervert the course of justice in respect that it was not recognised in that country as a separate charge. However, the Crown had led and relied on evidence as to the appellant's travelling from Scotland to the Netherlands. The application for extradition had said nothing about the appellant having committed sodomy. However, the appellant's conviction was recorded as a conviction for both murder and sodomy. Ms Scott pointed out that at paragraph 17 of his opinion Lord Wheatley had stated that the reference in the charge to dismemberment created no additional risk for the appellant. However, both dismemberment and sodomy had been treated as aggravations, and the appellant had been sentenced accordingly. It was not possible to separate the appellant's sentence from the matters in respect of which he was convicted. It was not enough to say that the issue had been dealt with by the decisions which had been taken before the appellant's trial. [9] We are satisfied that this ground of appeal is arguable, and, in that connection, that quite apart from the correctness of the decisions which were taken before the appellant's trial, there remains an arguable point as to whether or not the proceedings at the appellant's trial up to and including his sentencing involved a contravention of article 14 of the Convention. This raises matters of some substance, and in our view cause has been shown for giving leave to the appellant to found on this ground. [10] The second ground of appeal is extensive, but in essence it maintains that the appellant was denied a fair trial as a consequence of prejudicial publicity before and during the trial, and that there was a failure to put in place adequate safeguards against the risk of prejudice to the appellant. The first sift judge considered that certain paragraphs of the ground of appeal were not arguable in the light of the opinion of the appeal court dated 17 August 2001 which had rejected the claim that the appellant could not receive a fair trial (2001 S.C.C.R. 836), the opinion which the trial judge had delivered on 17 September 2001, the day before the commencement of the trial (2001 S.C.C.R.869), and the directions given to the jury in his charge. [11] Ms Scott pointed out that it was maintained that the trial judge had taken insufficient steps to manage the trial from the point of view of the appellant's right to a fair trial in accordance with article 6 of the European Convention on Human Rights. In particular his directions to the jury represented an insufficient safeguard. He had declined to make an order under the Contempt of Court Act 1981. Steps had not been taken to vet the jury and ensure that they did not have access to prejudicial material. The trial had not been moved from Edinburgh. She emphasised that it was not in dispute that the publicity was of a highly prejudicial nature. Prior to the trial Lord Wheatley, whose decision was affirmed by the Appeal Court, concluded that the gap in time between the publishing of this material and trial was such that it could not be said that a fair trial was impossible, and stated that the matter of prejudicial publicity could be raised again. Before the commencement of the trial it was pointed out to the trial judge that such publicity was continuing, and that the publicity was available on the internet. However, he revoked a previous order under the Contempt of Court Act and refused to make a more extensive order. It was clear that the position after the trial raised a different question from that before its commencement. [12] We consider that it is arguable that, standing the prejudicial publicity and the arrangements under which the trial was conducted, the appellant did not have a fair trial. This question should not be regarded as foreclosed by the decisions which were reached by Lord Wheatley and the appeal court prior to the commencement of the trial. Once again the ground of appeal raises matters of some substance, and the appellant has shown cause for his reliance on the ground of appeal as a whole. [13] The third ground of appeal, which was rejected as a whole by the first sift judge, relates to the validity of a search warrant which was executed by the police officers at his house. In the course of the trial the Crown were permitted to lead evidence which satisfied the trial judge that the search warrant related to the appellant's house, where it was executed. In the ground of appeal it is maintained that trial judge was wrong to allow such evidence to be led, and in any event that he erred in refusing to grant an adjournment to enable application to be made by bill of suspension to suspend the warrant in respect that there was no basis for its being granted. The first sift judge stated that no prima facie basis had been presented to the trial judge for such an adjournment. In any event the ground of appeal set out circumstances which plainly justified its granting. [14] Ms Scott pointed out that the opinion of the trial judge dated 3 October 2001, in which he rejected the challenge to the search warrant, specifically stated, at paragraph 33, that the fact that the issue sought to be raised in a bill of suspension could, if appropriate, be raised in the course of any appeal against conviction indicated that no injustice would be done to the appellant by the refusal of the appellant's motion for adjournment. [15] We are satisfied that it is in accordance with justice that the appellant should be able to rely on this ground of appeal, which in itself is arguable. It is reasonably plain that the validity of the search warrant was a matter of critical importance to the Crown case. In these circumstances the appellant has shown cause for the granting of leave to rely on this ground. [16] The fourth ground of appeal has been affected to a substantial effect since the decision of the first sift judge. It was maintained that the trial judge had erred in admitting evidence as to a 'statement' attributed to Kenneth Petrie, who had died prior to the trial, under section 259 of the 1995 Act (2001 S.C.C.R. 893). It was not a statement for the purposes of the section in respect that it was a precognition. In any event its contents were collateral and of no relevance to the issues at the trial. The first sift judge considered that these propositions were not arguable. [17] Ms Scott adhered to the contention that the 'statement' was a precognition, but for the rest accepted that the question of admissibility had been determined by the decision in Nulty v H.M. Advocate 2003 S.C.C.R.378. However, it would be maintained, she said, that the safeguards relied on by the trial judge were inadequate. The unfairness created by its admission could not be cured by any direction to the jury, especially against the background of the prejudicial publicity to which the second ground related (cf Hill v H.M. Advocate 2005 S.C.C.R.208). It carried the implication that the appellant had committed crimes which had not been charged. The trial judge had failed to re-assess the question of fairness in the light of the significance which the statement assumed in the presentation of the Crown case. [18] We consider that the proper course for us is to indicate that we are disposed to grant leave to the appellant to rely this ground of appeal, subject to its being reformulated, so that it can be considered at the hearing of the appeal along with the second ground. [19] The fifth ground of appeal is concerned with the admission at the trial of evidence relating to the appellant's travelling from Scotland to the Netherlands after his house was searched by the police. It is maintained that such evidence was not relevant to proof of the charge of murder, but was used as evidence of a crime not charged and for which he had not been extradited, namely an attempt to pervert the course of justice. No warrant had been issued for his apprehension. It tended to show that the appellant was of bad character and was prejudicial in nature. The first sift judge considered that it did not have that tendency, and that it was directly relevant to the appellant's knowledge. It did not require to be the subject of a separate charge. [20] Ms Scott submitted that the contentions in the ground of appeal were well founded, and observed that the first sift judge had not attended to the difficulty for the appellant in countering this evidence and rebutting the inference that his conduct was to do with the offence. The history of extradition was also relevant to this charge. [21] We consider that this ground of appeal is also arguable, and that, whether or not it is considered in conjunction with the first ground, cause has been shown for the granting of leave. [22] The remaining ground of appeal which we have to consider is the eighth. It is maintained that the trial judge erred in refusing to give a direction to the jury that there was insufficient evidence that the appellant punched the deceased on the face, that he assaulted him by penetrating his hinder parts with his private member, or that he killed or murdered the deceased. The first sift judge considered that these contentions were not arguable. [23] In support of this ground of appeal Ms Scott submitted that the trial judge's report, on which the first sift judge relied, was not an accurate reflection of the evidence. Transcripts of the evidence of witnesses Graham William Boax and Dr Jeanette H McFarlane would show that there was evidence that provided a strong alternative explanation for injuries to the deceased's face which was unrelated to the appellant or the crime charged. [24] We are satisfied that this ground of appeal is arguable and that cause has been shown for reliance on it. [25] In these circumstances we grant leave in regard to the whole grounds in so far as not previously specified. Ms Scott indicated that in that event she would ask for the opportunity to reformulate certain of the grounds of appeal. We will appoint the reformulated grounds to be lodged within a period of two weeks. Thereafter the appeal will be put out for a procedural hearing.
