Lewis Spence & Connor Steele v. His Majesty’s Advocate [2024] HCJAC 11

Notes of appeal against conviction and sentence:- The appellants were convicted after trial at the High Court, along with a co-accused Bradley Logan, of a number of charges including a charge of attempted murder by assaulting Peter Martin and brandishing weapons at him, pursuing him, attempting to strike him on the head and body with a machete and striking him on the hand with the machete, to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life. In relation to the charge of attempted murder each appellant was sentenced to an extended sentence comprising of a custodial period of 7 years and an extension period of 3 years with concurrent sentences in relation to the other charges. Both appellants appealed against their convictions and the first appellant also appealed against his sentence, it being contended that the imposition of an extension period was excessive. The appeals against conviction related to criticisms of the circumstances by which the jury could carry out an exercise of comparison in relation to identification from the CCTV footage relied upon by the Crown (Gubinas v HMA 2018 J.C. 45) partly as a result of the trial being conducted remotely, with the jury in a cinema electronically linked to the courtroom and the difficulties the jury had in comparing the appellants and the footage (towards the end of the evidence the jury asked if the accused could be put on full screen briefly as it was difficult to make out faces on the smaller image shown in the quarter screen) and the guilty verdict meant that the appellants had not received a fair trial and a miscarriage of justice had occurred. A further ground of appeal which criticised the prosecutor’s conduct of the trial was not insisted upon other than in relation to a discrete issue raised in relation to evidence which had been led in relation to the second appellant’s special defence of alibi. The trial judge in her report to the court was scathing of the conduct of the trial Advocate depute during the course of the trial and went as far as stating in her report that had she been asked to desert the trial she would have done so, provided she had an assurance that another Advocate depute would conduct the case and further stated that she could understand why the appellants thought they might not have had a fair trial. On behalf of the Crown the Lord Advocate submitted that it could not be inferred from the jury’s request to view the dock on full screen that they were unable properly to assess identification and the jury had received detailed directions on the issue of identification from the trial judge. The Lord Advocate also submitted that the concerns raised by the trial judge regarding the trial Advocate depute’s conduct of the trial were personal and petty and amounted to a hostile and hyper critical approach to the depute which went beyond legitimate criticism of what were generally matters of judgement by the Advocate depute over which competent practitioners might differ. Here the court refused the appeals against conviction in relation to both appellants. In relation to any criticism of the Advocate depute the court considered that the allegations made were serious and called into question not only the prosecutor’s competence but her integrity in seeking to lead irrelevant and objectionable evidence in the face of repeated warnings by the trial judge. The court reiterated, under reference to K.P. v. H.M.A. 2018 J.C. 33, that the test for establishing that the conduct of the prosecutor was so egregious as to prevent a fair trial, creating problems so grave that they could not be cured by direction was a high one and was not met in the present case. Further, the court observed that, given the serious professional and personal repercussions for an individual subject to such criticism, legal representatives have a responsibility to ensure that there is a proper foundation for such a ground of appeal before lodging. Whilst this ground of appeal was largely abandoned the conduct of the Advocate depute was nevertheless considered in light of her treatment of the evidence relating to the second appellant’s alibi. The court considered that no criticism could be attached to the Advocate depute and the manner in which the evidence had been dealt with. The court went on to consider what the Lord Advocate in her written submissions to the court In relation to the second ground of appeal and the issue of the jury’s ability to adequately compare the relevant CCTV with the appellants, the court noted that no suggestion had been made at the trial that the appellants did not have an adequate opportunity to view the appellants and they were visible throughout the trial to the jury on the quarter screen and there was no reason to think that the jury had been prevented from performing their task. The court considered that the trial judge’s criticisms of the trial Advocate depute were not well made or related to matters of little significance. Furthermore, the allegation that the Advocate depute made observations that were prejudicial to the appellants should not have been made by the trial judge, there being no basis for doing so. Similarly, in relation to the remark in her report to the court that the trial judge may have deserted the case pro loco et tempore if she had been invited to do so, the court considered that there was nothing which occurred which would have allowed the trial judge to justify such a step, particularly given the high test for a desertion to be granted at the stage proceedings had reached. In addition, the court noted that the trial judge expressed concerns about the fairness of the trial itself, which was an overarching obligation the court noted the trial judge herself was responsible for. In relation to the first appellant’s appeal against the imposition of the extended sentence the court refused the appeal. Whilst the CJSWR obtained did not specifically address the question of whether the statutory criterion for an extended sentence was satisfied, namely, that the period for which the offender would otherwise be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender, the court considered, the nature of the murderous attack on the complainer, the first appellant’s history of offending, the risk factors present and the risk that he would cause serious further harm being assessed as high, all of which provided a sufficient basis for the imposition of an extended sentence.