William Gavin Grant v. Her Majesty's Advocate [2009] HCJAC 84

Criminal Note of Appeal Aginst Conviction and Sentence:- On 16 May 2003 the appellant was convicted after trial at the High Court of Justiciary at Glasgow of a charge of contravening section 170(2)(b) of the Customs and Excise Management Act 1979. Leave to appeal was granted in respect of a number of grounds of appeal, however, here only one ground of appeal was argued. The ground of appeal related to three tapes of an interview between a witness "Nicola Smith" and an officer of HM Customs and Excise on 1 October 2002. It was submitted that as the tapes were Crown productions his counsel knew or ought to have known of the terms of the interview and there had been no cross-examination of the witness Nicola Smith by reference to the interview. It was submitted that having regard to the terms of the interview no reasonably competent counsel could have done other than use it to cross-examine the witness. It was submitted that the trial was unfair and that there had been a miscarriage of justice on account of this failure by counsel. It was submitted on behalf of the Crown that albeit the appellant's solicitor and counsel should have been aware of the contents of the interview, in the circumstances, however, the failure was not a matter of any significance and the omission did not amount to a failure in any material respect to present the appellant's defence. Here the court considered whether there was any likelihood of the relevant tapes being used, and in the event that they would have been, whether they would be of any material effect in support of the appellant's defence.