APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Mackay of Drumadoon	[2010] HCJAC 81 Appeal No: XC195/05 OPINION OF THE COURT delivered by LADY PATON in APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT by PATRICK DOCHERTY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: G Jackson Q.C., C.M. Mitchell; Mann & Co

Respondent: G Allan Q.C., Advocate depute; Crown Agent

30 July 2010

[1] On 1 March 2005, the appellant was convicted of murder by majority verdict. He was sentenced to life imprisonment. He appealed against conviction. A notice of intention to appeal and a note of appeal were lodged on 15 March and 28 July 2005 respectively. On 27 January 2006, leave to appeal was granted at the first sift. Many procedural hearings then took place, during which issues of disclosure, transcription of evidence and other matters were dealt with. The appeal hearing was delayed until the appellant's co-accused, Brendan Dixon, completed his appeal to the Supreme Court on a question of disclosure (2008 SCCR 954).

[2] At a procedural hearing on 15 October 2009, some two weeks before the appeal hearing fixed for 3-4 November 2009, Mr Jackson QC appeared on behalf of the appellant. He advised that he had been instructed in August 2009, as the appellant had dismissed his previous legal team. He had reviewed the papers. He wished to abandon certain grounds of appeal and to add new grounds. He was permitted to do so (although in fact the proper procedure would have been for the court to grant leave to amend the existing grounds, to request a further report from the trial judge, and to return the amended grounds to the first sift: see the High Court of Justiciary Practice Note No 2 of 2010 "Amended grounds of appeal"). The grounds he abandoned were grounds 1, 2 and 3 in the original note of appeal lodged with the Justiciary Office on 28 July 2005, leaving grounds 4 and 5 in that note to be argued. The additional grounds were contained in a document headed "additional grounds of appeal" lodged with the Justiciary Office on 7 October 2009 and marked 1A. Those additional grounds were subsequently referred to as a composite "ground 1A". Thus as at 15 October 2009, the grounds of appeal expected to be argued were grounds 4, 5 and 1A.

[3] At the commencement of the appeal hearing on 3 November 2009, Mr Jackson sought to lodge late three additional grounds of appeal contained in a document headed "note of appeal against conviction", which was marked 1B by the clerk of court. Read short, those grounds comprised (i) the alleged non-disclosure of the police statements of Crown witness Mr Keers, the nephew and next-door-neighbour of the deceased whose evidence inter alia assisted in focusing the time of death; (ii) the fact that Mr Keers did not attend an identification parade, but at the trial gave evidence that the appellant resembled one of two men seen acting suspiciously outside the deceased's house the day before the murder; and (iii) the fact that the appellant gave several interviews to police officers without having had access to a solicitor. Senior counsel acknowledged that there was no good reason for the lateness of the proposed additional grounds. As previously explained, the appellant had parted company with his former solicitor and counsel. Mr Jackson had been instructed and asked to review the existing grounds of appeal. He had done so, abandoning some grounds and adding others. Junior counsel had been instructed in late October 2009, and on conducting a further review of the papers, had found several additional points: hence the late tendering of document 1B.

[4] The Advocate depute opposed the new proposed grounds. They came too late. It was not accepted that there had been a failure to disclose the information contained in Mr Keers' police statements. Evidence on that issue might have to be led. No objection had been taken during the trial to any of the evidence referred to in document 1B. The appeal had a protracted history going back to the conviction in 2005. Grounds of appeal were intended to be a full and proper outline of the arguments to be presented and not just "an opening gambit".

[5] We considered the submissions, and concluded that the proposed additional grounds came too late, without any good reason for their lateness. We refused to receive them. The appeal was heard, and was taken to avizandum. On 26 March 2010, the appellant's appeal against conviction was refused: [2010] HCJAC 31.

[6] On 30 June 2010 the appellant sought leave to appeal to the Supreme Court on the following grounds:

Ground of Appeal 1A: the admitted non-disclosure of the police statements of Crown witness Sheena Orr, a matter which gave rise to a devolution issue and in relation to which a Devolution Minute had been lodged on 28 October 2009. The Appeal Court in its judgment [2010] HCJAC 31 at paragraphs [71]-[74] had erred in relation to that non-disclosure when taking the view that senior counsel took a tactical decision, as in the absence of full disclosure, counsel could not take such a decision.

The three Grounds of Appeal contained in document 1B (disallowed at the beginning of the appeal hearing): each ground was said to contain a devolution issue, although no Devolution Minute had been tendered during senior counsel's motion on 3 November 2009. Senior counsel submitted that (i) the disclosure of Mr Keers' police statements would have enabled the defence to undermine Mr Keers' credibility and reliability, which would have been of importance not only in relation to the time of the murder, but also in respect of the resemblance evidence relating to the appellant which had been given by Mr Keers at the trial; (ii) Mr Keers' evidence of resemblance could also be challenged in terms of Holland v H.M. Advocate 2005 1 SC (PC) 3, in that there had been no attendance at an identification parade before the trial; and (iii) a challenge could be made to the admissibility of police interviews with the appellant conducted without the benefit of advice from a solicitor: cf Salduz v Turkey (2008) 49 EHRR 19 (although counsel conceded that, standing the current 7-judge decision in McLean v H.M. Advocate 2010 SLT 73, such an argument would only have merit if the Supreme Court overturned McLean in the recently argued appeal of Cadder v H.M. Advocate.)

[7] We were not persuaded that the matters noted above raised arguable points of law of general importance such as to merit consideration by the Supreme Court. We accordingly refused leave to appeal.