Application by Stephen Stewart under section 107(8) of the Criminal Procedure (Scotland) Act 1995 by Stephen Stewart against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

This was an application under section 107(8) and (9) of the Criminal Procedure (Scotland) Act 1995 for leave to argue grounds of appeal that had been refused at first sift, but the application itself did not explain why leave should be granted or identify the particular grounds in issue. [Para 14][Para 15] The missing detail was supplied only in written submissions, which also showed that the request was for a hearing rather than determination on paper. [Para 18][Para 19] The Appellant had been convicted of culpable homicide, abduction, extortion, and two drugs charges, and leave to appeal had already been granted on grounds 1 and 2(a), leaving the Appellant to seek reinstatement of grounds 2(b) and 3. [Para 20][Para 21][Para 30][Para 31]

Legal Issues Presented

1. What must an applicant show in order to obtain leave under section 107(8) of the 1995 Act to argue a ground that was refused at sift? [Para 14][Para 15][Para 34][Para 35][Para 38]
2. Whether ground 2(b), concerning the trial judge’s directions on assault, should be reinstated. [Para 24][Para 28][Para 42][Para 44][Para 45][Para 47]
3. Whether ground 3, that no reasonable jury properly directed could have convicted, should be reinstated. [Para 29][Para 30][Para 48]

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that there was insufficient evidence on charge 1, that too many inferential steps were required, and that the case was speculative, particularly because the first accused was not present at the locus and any case against him depended on concert. [Para 23]
• The Appellant argued that the trial judge materially misdirected the jury by failing to direct that conviction on charge 1 required prior conviction on charges 2 and 3, by not explaining how assault could be proved if only words were relied on, and by omitting a “but for” causation direction. [Para 24][Para 25][Para 27][Para 28][Para 29]
• The Appellant also contended that the verdict on charge 1 was one no reasonable jury properly directed could have returned because it rested on speculation rather than reasonable inference. [Para 30]
• For the reinstatement application, the Appellant relied on authorities including Gordon’s Criminal Law and Kenny v HM Advocate to support the challenge to ground 2(b). [Para 42][Para 43]
• The Appellant further submitted that ground 3 was inextricably linked to ground 1 and, to some extent, ground 2(b), and suggested it was unfair that a partly successful appellant should be in a worse position than one who had failed entirely at first sift. [Para 38][Para 39][Para 48]

Table of Precedents Cited

Court's Reasoning and Analysis

The court first stressed that an application under section 107(8) is not an appeal against the sift decision itself, and that grounds refused at sift may only be argued if “cause” or “good reason” is shown. [Para 14][Para 15][Para 34][Para 35][Para 38] It added that applications should, as a matter of good practice, set out their basis in the application itself, rather than revealing it later in submissions. [Para 18][Para 19]

The court rejected the submission that a partly successful appellant was in a worse position than one who had failed entirely at first sift, because the statute makes no such distinction and the authorities apply the same test. [Para 39][Para 40][Para 41]

On ground 2(b), the court held that the trial judge’s charge, read as a whole, gave the jury a clear route to verdict, so the complaint that the directions failed to do so was unarguable. [Para 42][Para 44] It also held that the proposition that “words alone cannot be an assault” was not a free-standing basis for reinstatement of ground 2(b), because that point, if supported by the evidence, belonged within the sufficiency challenge in ground 1. [Para 45][Para 46]

On ground 3, the court held that the Appellant had not shown that the “no reasonable jury” ground was inextricably linked to grounds 1 or 2(b), and the submissions amounted only to disagreement with the sift judge rather than a proper showing of good reason. [Para 48]

Holding and Implications

The application was refused. [Para 49] The direct effect was that grounds 2(b) and 3 were not reinstated, and the court reiterated that future section 107(8) applications should contain their grounds in the application itself; no broader new precedent was announced beyond the repeated application of Beggs and Birnie. [Para 19][Para 40][Para 49]