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Appeal following a reference from the Scottish Criminal Cases Review Commission by Darren Hughes against HMA (High Court of Justiciary)
Factual and Procedural Background
On 3 February 2022 at the High Court in Glasgow, the Appellant was convicted of two charges: assaulting his sister by entering her flat uninvited and physically attacking her, and assaulting and attempting to murder the victim by punching, kicking, and stabbing him, resulting in severe injury and permanent disfigurement. A co-accused, Defendant, was also convicted of both charges but with lesser aggravations on the attempted murder charge. The incidents occurred on 7 December 2019. The Appellant was sentenced to nine years’ imprisonment. An appeal against conviction was refused in November 2022.
In April 2024, the Scottish Criminal Cases Review Commission (SCCRC) referred the case back to the court on the basis of possible miscarriage of justice due to new evidence not heard at the original trial. This evidence came from a witness, Ms. Tant, the ex-wife of the co-accused Defendant, who testified about threats and admissions made by the Defendant regarding the stabbing. The court considered her evidence after issuing a warrant for her arrest due to her initial failure to appear.
Legal Issues Presented
- Whether the new evidence from Ms. Tant constitutes a reasonable explanation for not being presented at the original trial under section 106(3A) of the Criminal Procedure (Scotland) Act 1995.
- Whether the new evidence is credible, reliable, and of such significance that it would have materially affected the jury’s verdict, potentially resulting in a miscarriage of justice.
- Whether the appeal should be allowed based on the standards set out in precedent cases concerning fresh evidence and miscarriage of justice.
Arguments of the Parties
Appellant's Arguments
- The Appellant was unaware of the conversations between the Defendant and Ms. Tant prior to or after the incident and thus had a reasonable explanation for the absence of this evidence at trial.
- The new evidence is directly relevant to the credibility of the Defendant, whose testimony the jury accepted over the Appellant’s and other witnesses’ evidence.
- The fresh evidence meets the test for miscarriage of justice as established in Al Megrahi v HM Advocate 2022 JC 99 and Razzaq v HM Advocate 2018 JC 21, and the court should adopt a broad and flexible approach in assessing the explanation for the fresh evidence not being presented.
The Crown's Arguments
- The evidence from Ms. Tant would have been admissible and of incidental benefit to the Appellant but there is no reasonable explanation for why it was not led at trial.
- The Appellant was in a position to know of Ms. Tant’s potential evidence and should have informed his solicitors, as he was present during the relevant admissions and interactions.
- Even if the new evidence were credible, the jury would not have been bound to acquit given the significant evidence implicating the Defendant and undermining his credibility, which the jury rejected in favor of the Defendant’s evidence.
- The appeal should fail based on the objective test for reasonable explanation as clarified in Razzaq and Campbell v HM Advocate 1998 JC 130.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Razzaq v HM Advocate 2018 JC 21 | Sets out the test for reasonable explanation for failure to adduce fresh evidence and the broad and flexible approach to be taken. | The court applied the objective test from Razzaq to assess the Appellant’s explanation and found it insufficient to justify the absence of Ms. Tant’s evidence at trial. |
| Al Megrahi v HM Advocate 2022 JC 99 | Establishes the criteria for allowing an appeal based on new evidence, including the requirement that the jury would have been bound to acquit or that a miscarriage of justice occurred. | The court referenced this precedent in evaluating the significance and credibility of Ms. Tant’s evidence in relation to the original verdict. |
| McLay v HM Advocate 1994 JC 159 | Allows evidence admissible against a co-accused to be of incidental benefit to another accused. | The Crown cited this to argue that Ms. Tant’s evidence could have been used against the Defendant and thus was relevant to the Appellant’s case. |
| I(N) v HM Advocate [2018] HCJAC 66 | Confirms that a reasonable explanation for failure to adduce evidence is a prerequisite to considering its effect on the trial verdict. | The court relied on this authority to emphasize the necessity of a reasonable explanation before assessing the impact of fresh evidence. |
| Campbell v HM Advocate 1998 JC 130 | Clarifies the objective nature of the reasonable explanation test and the requirement that the explanation must adequately account for the failure to call the evidence. | The court used this precedent to reinforce the threshold for reasonable explanation and to reject the Appellant’s explanation as inadequate. |
| Barr v HM Advocate 1999 SCCR 13 | Illustrates circumstances where failure to investigate or call witnesses known or reasonably discoverable negates a reasonable explanation for absence of evidence. | The court applied the principles from Barr to highlight the Appellant’s failure to take reasonable steps to investigate Ms. Tant as a witness. |
| Burzala v HM Advocate 2008 SLT 61 | Demonstrates that failure to investigate a class of potential witnesses negates reasonable explanation for absence of evidence. | The court used this case to support the conclusion that the Appellant should have investigated Ms. Tant’s evidence prior to trial. |
Court's Reasoning and Analysis
The court first considered whether there was a reasonable explanation for the fresh evidence from Ms. Tant not being presented at the original trial, applying the test from Razzaq and related authorities. The Appellant’s explanation—that he was unaware of Ms. Tant’s conversations with the Defendant and the admissions made—was found to be insufficient. The court noted that the Appellant was present during the interactions between Ms. Tant and the Defendant on the morning after the incident, where the Defendant was apologetic and visibly upset. The Appellant’s own account indicated he spoke to the Defendant about the stabbing, implying knowledge of the admissions. Given this, the court found it unlikely that the Appellant could not have identified Ms. Tant as a witness or informed his solicitors.
The court also emphasized the importance of reasonable steps being taken to investigate potential witnesses known or reasonably discoverable, referencing Barr and Burzala. The failure to do so undermined the reasonableness of the explanation for the absence of this evidence at trial.
Because no reasonable explanation was established, the court did not proceed to assess the potential impact of the fresh evidence on the jury’s verdict. The court noted that even if the evidence were credible and reliable, the jury was not bound to acquit based on the existing substantial evidence implicating the Defendant and discrediting him, which the jury accepted over other testimony.
The court further criticized the SCCRC’s assessment as superficial regarding whether the Appellant witnessed or heard the Defendant’s admissions, underscoring that the Appellant’s presence and conduct strongly suggested he did.
Holding and Implications
The court REFUSED the appeal.
The direct consequence is that the Appellant’s convictions and sentence remain intact. The decision confirms the strict application of the requirement for a reasonable explanation before fresh evidence can justify overturning a conviction. No new precedent was established; rather, the court reaffirmed existing principles regarding fresh evidence, reasonable explanation, and miscarriage of justice in criminal appeals.
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