APPEAL AGAINST CONVICTION BY SAHAIL AHMED

Factual and Procedural Background

The Appellant was indicted alongside two brothers on charges of attempted fraud and wilful fire-raising, with the latter charge withdrawn during trial. Following trial at the High Court of Justiciary in Glasgow, the Appellant and one brother were convicted of attempting to obtain insurance money by deliberately setting fire to shop premises owned by the Appellant. The other brother was acquitted. Both convicted brothers were sentenced to two years imprisonment and appealed their convictions. The Appellant was granted interim liberation pending appeal, which proceeded on fresh evidence contained in an affidavit sworn by the convicted brother after his appeal was refused. The court granted a warrant to cite that brother to give oral evidence at the appeal hearing.

Legal Issues Presented

1. Whether the new evidence contained in the affidavit of the convicted co-accused, not heard at the original trial, was credible and reliable and could have materially affected the jury's verdict.
2. Whether there had been a miscarriage of justice under section 106(3)(a) of the Criminal Justice (Scotland) Act 1995 based on the fresh evidence.

Arguments of the Parties

Appellant's Arguments

• The Appellant sought to rely on the affidavit of the co-accused brother who took sole responsibility for the fire, asserting that neither the Appellant nor the other brother knew of the intention to set fire.
• The Appellant contended that this fresh evidence demonstrated a miscarriage of justice that warranted quashing the conviction.

Respondent's Arguments

• The Crown conceded there was a reasonable explanation why the affidavit evidence was not heard at trial but challenged the credibility and reliability of that evidence.
• The Crown maintained that the evidence was highly unsatisfactory, contained discrepancies, and conflicted with other trial evidence, thus not amounting to a miscarriage of justice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Megrahi v HMA 2002 JC 99	Test for allowing appeal based on fresh evidence: miscarriage of justice requires that new evidence be credible, reliable, and likely to have materially assisted a reasonable jury.	The court applied this test to determine whether the affidavit evidence would have compelled acquittal or otherwise caused a miscarriage of justice.
Fraser v HMA 2008 SCCR 407	Requirement that appellant provide a reasonable explanation for why fresh evidence was not heard at trial and assessment of the cogency and reliability of such evidence.	The court accepted the reasonable explanation for non-hearing of the affidavit evidence but assessed the credibility and cogency of the evidence as unsatisfactory.

Court's Reasoning and Analysis

The court first accepted the Crown's concession that there was a reasonable explanation for why the affidavit evidence was not heard at trial, satisfying the initial procedural hurdle. The court then assessed the affidavit and oral evidence of the co-accused in the context of the entire trial record. It found numerous discrepancies and contradictions in the co-accused’s accounts, including conflicting timings of events, inconsistent explanations regarding the purchase and use of petrol, and contradictions between the affidavit and oral evidence. The court noted the co-accused’s lack of credibility, including the suspicious timing of the affidavit shortly after his appeal was refused and his inconsistent statements about responsibility for the fire.

The court also considered the strong circumstantial case against the Appellant, including CCTV evidence showing the Appellant’s presence and actions at the premises, the nature and extent of the fire with multiple separate ignition points consistent with petrol use, and the Appellant’s conduct in promptly paying the insurance premium and initiating a claim. The court found it inconceivable that the Appellant was unaware of the fire-raising plan or was not involved.

Applying the legal principles from the cited precedents, the court concluded that the fresh evidence was neither credible nor reliable and would not have materially assisted a reasonable jury in reaching a different verdict. Therefore, no miscarriage of justice had occurred.

Holding and Implications

The court REFUSED the Appellant’s appeal against conviction.

The direct effect is that the conviction and sentence stand, and the Appellant must serve the remainder of the sentence. The court’s decision does not establish new legal precedent but reaffirms the rigorous standards for admitting fresh evidence on appeal and confirms the importance of assessing such evidence in the full context of the trial record.