Threshold for Fresh Evidence Appeals: Reasonable Explanation and Significance under Section 106(3) of the Criminal Procedure (Scotland) Act 1995

Introduction

The case of Marshall v His Majesty’s Advocate ([2025] HCJAC 20) is an appeal against conviction in the Scottish High Court of Justiciary. Barry Marshall, convicted of attempted murder and robbery with co-accused Marion Hawkins, sought leave to adduce fresh evidence from Danielle Egan—an affidavit recounting post-trial confessions by a third party, Alan “Alby” Craik. The appellant argued that this evidence, not heard at trial, amounted to a miscarriage of justice under section 106(3) of the Criminal Procedure (Scotland) Act 1995. The Crown resisted, citing hearsay rules and the tactical nature of trial decisions. The court, chaired by Lord Justice Clerk Beckett, had to determine admissibility, reasonable explanation for non-production at trial, and the significance of the new evidence.

Summary of the Judgment

The court refused the appeal. It held:

The statements Mr Craik allegedly made to Ms Egan were inadmissible hearsay under section 259 of the 1995 Act, falling outside any exception.
Only two narrow facts—the purchase of a machete months before the attack, and Mr Craik’s blood-stained clothing on one night—were arguably admissible, but these were trivial in context.
Applying the Al-Megrahi guidelines (Megrahi v HM Advocate 2002 JC 99), the court found the new evidence neither credible nor of such significance that a jury would have been “bound to acquit” or that its absence constituted a miscarriage of justice.
The decision in Mills v HM Advocate (1999 JC 216) underscored that tactical choices at trial (e.g., not leading a witness or not seeking adjournment to investigate) cannot later be undone on appeal.
Accordingly, even if a reasonable explanation existed for non-production at trial, the limited admissible evidence was not “material” to the critical issues and the appeal was dismissed.

Analysis

Precedents Cited

Megrahi v HM Advocate 2002 JC 99:
Established the test for fresh evidence appeals under section 106(3): whether a jury, properly directed, would have been bound to acquit, or whether absence of the evidence amounts to a miscarriage of justice because it was of “material assistance” on a critical issue.
Fraser v HM Advocate 2008 SCCR 407 and Gallacher v HM Advocate 1951 JC 38:
Warned against elevating new evidence in isolation; it must be assessed against the full trial context.
Little v HM Advocate 1983 JC 16 and Geddes v HM Advocate 2015 JC 229:
Affirmed the strength of circumstantial evidence and its interplay with identification challenges.
Mills v HM Advocate 1999 JC 216:
Held that tactical decisions at trial—in particular not to call a proposed incriminating witness—cannot be reversed on appeal to justify a new trial.
Finnegan v HM Advocate 2025 JC 20:
Confirmed that spontaneous utterances (“res gestae”) by a victim can be admissible to corroborate identity evidence.

Legal Reasoning

The court’s reasoning unfolded in several stages:

Hearsay Analysis: Under section 259 of the 1995 Act, statements made outside court are inadmissible unless they fall within statutory exceptions. Ms Egan’s recounting of Mr Craik’s admissions and demonstrations was classic hearsay. No exception applied, so the bulk of her affidavit was inadmissible.
Identification of Admissible Fragments: The only non-hearsay “behaviour” evidence might have been if Ms Egan had observed Mr Craik disposing of implements or cleaning clothes. Instead, she only saw a blood-stained jumper and learned of a machete purchase months earlier—factors of negligible relevance.
Materiality under Megrahi: Even if admissible, that limited evidence did not meet the Megrahi thresholds. The trial had strong identification and circumstantial links: the victim’s viewing of the attacker (“Barry”), the later VIPER identification, connection to the cash-safe dispute, CCTV of the appellant’s car, false alibi and inconsistent statements, and Ms Hawkins’s DNA on the victim’s phone. The court concluded no reasonable jury would treat Ms Egan’s evidence as materially altering the outcome.
Tactical Decisions and Mills: Although Mr Craik was never cited, the appellant knew of his name in advance and chose not to seek an adjournment or call him at trial. Under Mills, such choices fall within trial strategy and cannot be reopened on appeal merely to advance a new line of incrimination.
Credibility and Reliability: The court found Ms Egan’s testimony internally inconsistent (discrepancies between her affidavit, police statement and oral evidence) and perfunctory attempts to excuse them. A jury would have been unlikely to accept her account at face value.

Impact

This decision reinforces key principles in Scottish criminal appeals:

Strict application of hearsay rules: lay statements of admissions remain inadmissible without clear statutory exception.
High threshold for fresh evidence: it must be credible, reliable and so significant that a jury would have been bound to acquit or, failing that, that its absence amounts to a miscarriage of justice.
Trial tactics are final: decisions whether to call a particular witness or seek an adjournment will not generally be revisited on appeal.
Emphasis on holistic evaluation: new evidence must be weighed against the full body of trial evidence, especially in circumstantial cases.

Future appellants and defence counsel should note the narrow window for admitting fresh evidence and plan investigations accordingly prior to or during trial, rather than at the appellate stage.

Complex Concepts Simplified

Hearsay

Evidence of what someone else said outside court. Generally inadmissible unless covered by specific exceptions in the Criminal Procedure (Scotland) Act.

Fresh Evidence Appeal (Section 106(3))

An appeal based on evidence not heard at trial. To succeed, the appellant must (a) explain why it wasn’t led at trial, and (b) show it would have significantly affected the verdict.

Megrahi Test

A two-step approach:

Would a properly directed jury have been bound to acquit if they heard the new evidence?
If not bound, is the new evidence of such significance that its absence was a miscarriage of justice?

Res Gestae

Spontaneous statements made during an event (e.g., “Barry, Barry that’s enough”) that help identify participants. These can be admissible and are not hearsay.

Tactical Decision

A strategic choice by defence counsel (e.g., not calling a witness). Under Mills, such choices cannot be undone on appeal simply because another strategy might have been advantageous.

Conclusion

The decision in Marshall v HMA crystallises the strict criteria for admitting fresh evidence on appeal in Scotland. It underscores that late-discovered hearsay allegations—even if believed by the witness—will fail if they provide only marginal corroboration. Defence teams must investigate and present all viable incriminating or exculpatory witnesses at trial. Post-conviction affidavits of third-party confessions do not, by themselves, satisfy the twin requirements of admissibility and material significance. This judgment thus fortifies the finality of verdicts, while still allowing truly compelling new evidence—properly validated and of genuine impact—to prompt appellate courts to rectify miscarriages of justice.