Admissibility of Late Witness Testimony: Hughes v HM Advocate [2022]

Introduction

The case of Darren James Hughes v HM Advocate ([2022] ScotHC HCJAC_44) represents a significant appellate decision by the Scottish High Court of Justiciary. Darren Hughes, convicted of aggravated assault and attempted murder, appealed his conviction primarily on the grounds that critical evidence was unjustly excluded during his trial. The core issue revolved around the trial judge's refusal to admit testimony from Danielle Farrer, sister of the deceased victim Ryan Farrer, who had been present in the courtroom but was not listed as a defense witness. This commentary delves into the intricacies of the case, the court's reasoning, and the broader implications for Scottish criminal procedure.

Summary of the Judgment

On February 3, 2022, Darren Hughes was convicted of two serious charges stemming from a December 7, 2019 incident in Edinburgh: assaulting his sister Ashley Hughes and assaulting Ryan Farrer, the latter of which included attempted murder. Sentenced to nine years, Hughes appealed the conviction, challenging the exclusion of Danielle Farrer's testimony. Ms. Farrer, present in the courtroom throughout the trial, sought to provide additional insights that were not admitted by the trial judge. The High Court reviewed the application under section 267(2) of the Criminal Procedure (Scotland) Act 1995 but ultimately upheld the trial judge's decision to exclude her testimony, affirming Hughes' conviction.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to justify the exclusion of Ms. Farrer's testimony. Notably:

Macdonald v Mackenzie (1947) JC 169: Established the onus on the person seeking to adduce a witness to demonstrate that the conditions for admitting late testimony are met.
Affleck v HM Advocate (2005) SCCR 503: Clarified that the mere presence of a potential witness in court does not automatically compel their inclusion as a testifying witness.
Allison (Practice 542): Emphasized the necessity for witness testimony to be fresh and untainted by hearing other witnesses' accounts.

These precedents collectively underscored the judiciary's cautious approach towards admitting late witnesses, especially those who may have been influenced by observing court proceedings.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of section 267(2) of the Criminal Procedure (Scotland) Act 1995. This provision allows for the admission of a witness who was present in court but not initially listed, provided certain conditions are met:

The witness's presence was not due to culpable negligence or criminal intent.
The witness has not been unduly instructed or influenced by what transpired during their presence.
The admission of the witness would not result in injustice.

In applying these criteria, the trial judge concluded that Ms. Farrer, having sat through pivotal parts of the trial, was likely influenced by the evidence presented, particularly the testimonies implicating Mr. Mitchell. The judge noted the absence of prior indications that Ms. Farrer intended to provide testimony and recognized the potential for her observations to have swayed her testimony. Consequently, admitting her late testimony could introduce bias, undermining the fairness of the trial.

Impact

The High Court's affirmation of the trial judge's decision reinforces the stringent standards required for admitting late witnesses in Scottish criminal proceedings. It underscores the judiciary's commitment to ensuring that all evidence presented is both reliable and free from undue influence. Future cases involving late witness testimonies will likely refer to this judgment to navigate the delicate balance between admitting potentially exculpatory evidence and maintaining trial integrity. Moreover, it may prompt legal practitioners to more diligently identify and disclose all potential witnesses prior to trial to avoid similar exclusions.

Complex Concepts Simplified

Section 267(2) of the Criminal Procedure (Scotland) Act 1995

This section governs the conditions under which a witness who was present in the courtroom but not listed can be admitted to testify. It ensures that the introduction of such testimony does not compromise the trial's fairness or introduce biased evidence.

Admissibility of Witnesses

Admitting a witness late in a trial means allowing someone to testify even though they were not initially called upon or listed as a potential witness. This process is carefully regulated to prevent unfair advantage or prejudice in the proceedings.

Miscarriage of Justice

Refers to a situation where the legal system fails to achieve justice, often due to wrongful convictions or the exclusion of crucial evidence. Courts strive to minimize such occurrences by adhering to strict evidentiary rules.

Conclusion

The judgment in Hughes v HM Advocate serves as a pivotal reference for the admissibility of late witnesses in Scottish criminal law. By upholding the trial judge's decision to exclude Danielle Farrer's testimony, the High Court reaffirmed the importance of safeguarding the integrity of the trial process. This case highlights the delicate balance courts must maintain between allowing comprehensive evidence and ensuring that such evidence is presented in an unbiased and fair manner. Legal practitioners and future litigants must take heed of the stringent criteria established, ensuring meticulous preparation and disclosure of all potential witnesses to uphold the principles of justice.