Second bite at the cherry

1. Introduction

The Crown has traditionally had no means of challenging acquittals or evidential rulings in the course of trials under solemn procedure, and only in recent years has the process of Lord Advocate’s references allowed points of law arising to be settled by the High Court. References, of course, have no effect on the outcome of the trial, but following the Scottish Law Commission’s Report on Crown Appeals (no 212, July 2008), the Criminal Justice and Licensing (Scotland) Act 2010 inserts new ss 97A-97D and 107A-107F into the Criminal Procedure (Scotland) Act 1995, introducing a right of appeal for the Crown in trials under solemn procedure.

The legislation is not without its complexities, given first the involvement of a jury in proceedings, and secondly the need to deal with the wide range of issues that may be brought under review.

2. Types of appeal

To summarise, the prosecutor may appeal:

• (1) an acquittal on a “no case to answer” submission under the existing s 97 (references are to the 1995 Act except where stated);
• (2) an acquittal following a submission on sufficiency of evidence made at the close of the whole evidence or after the prosecutor’s address to the jury on the evidence;
• (3) a decision that the evidence is insufficient in law to justify conviction of the indicted offence, and consequent direction that an amended charge be substituted;
• (4) a decision that the evidence does not support some part of the circumstances set out in the indictment, and consequent direction that the indictment be amended;
• (5) a decision that evidence the prosecution seeks to lead is inadmissible.

For convenience, the different forms of appeal will be referred to throughout by these numbers.

3. Initial adjournments

Provision is made in most instances to allow the Crown to consider its position carefully before intention to appeal is intimated (s 107). Immediately after an acquittal (types (1) and (2)), the prosecutor may seek an adjournment of the trial diet for up to two days, in order to consider whether to appeal the decision. The court must grant this motion, unless it considers there are no arguable grounds of appeal.

The prosecutor may also seek an adjournment for up to two days in type (3) and (4) appeals after the judge’s direction. Again the court must grant this motion, unless it considers it is not in the interests of justice. Among the criteria to be applied are:

• (a) whether, if an appeal were to be successful, continuing with the diet would have any impact on any subsequent or continued prosecution; and
• (b) whether there are any arguable grounds of appeal.

Matters falling to be considered under (a) might include the length of the trial, the nature of the offences, the extent of any amendments, and the likely impact on witnesses and on the quality of evidence of a new prosecution.

4. Decisions on admissibility of evidence

The provision for type (5) appeals (s 107B(1)) effectively overrules the decision in Thomson v HMA 1994 JC 36, where the High Court held that it was not competent to review in the middle of a trial a decision that certain evidence was inadmissible.

Unlike the other forms of appeal, type (5) appeals may proceed only with leave of the court (s 107B(2)). And in determining whether to grant leave the court must consider:

• whether there are arguable grounds of appeal; and
• what effect the finding has on the prosecutor’s case.

While this last consideration is for the court to determine, it may not be apparent to the court without the assistance of both prosecutor and defence. But in any event it seems leave is unlikely to be granted where the evidence in question is of little significance.

The prosecutor may seek leave to appeal at any time before the close of the Crown case. Unlike in other types of appeal, there is no specific provision for adjournment in type (5) appeals to allow the prosecutor to consider his position, but that would not of course preclude the prosecutor from seeking an adjournment for that purpose.

5. Intimation of intention to appeal

In type (1)-(4) appeals the prosecutor must intimate his intention to appeal:

• immediately after the acquittal or direction;
• immediately on resumption of the diet if an adjournment is granted; or
• immediately after refusal of such adjournment.

6. Expedited appeals

In order to avoid, where possible, the need for a retrial in the event of a successful Crown appeal, provision is made for “expedited appeals” (s 107D(3)). Where intimation of intention to appeal is given (types (1)-(4)), or leave to appeal is granted (type (5)), and the court establishes that an appeal can be heard during an adjournment of the trial diet, it must advise parties and, after hearing from them, may decide that the appeal should be heard during an adjournment of the trial diet.

In that event, the court must adjourn the diet and suspend the effect of the acquittal (s 107D(4)).

No time limit is set for the hearing of expedited appeals, but clearly the intention is that they will be disposed of as soon as possible.

7. Lodging the note of appeal

If the appeal is not an expedited appeal, a note of appeal must be lodged with the clerk of Justiciary within seven days of intimation of intention to appeal (or in the case of type (5) appeals, within seven days of leave being granted).

If the appeal is an expedited appeal, the note of appeal must be lodged as soon as practicable after the court has decided to proceed in this way (new s 110(1)(c)-(e)). The clerk must send a copy of the note of appeal to the judge and to the accused or his solicitor.

8. Judge’s report

Section 113 is amended to allow for the provision of a judge’s report, except in the case of an expedited appeal, where the judge may on receipt of the note of appeal provide “any written observations that the judge thinks fit on… the case generally (and) the grounds contained in the note of appeal” (s 113A(1)). While this may be a somewhat less formal document, it seems to serve the same purpose, although the court may hear and determine the appeal without such written observations (s 113A(2)).

9. Desertion of the diet

Where the appeal is not an expedited appeal, and is not an appeal against acquittal, the court must desert the diet pro loco et tempore in relation to any offence to which the appeal relates (s 107F(2)).

The trial will therefore proceed only if any unrelated offence remains on the indictment. But, if the prosecutor moves for the diet to be deserted in respect of any other offence, that motion must be granted: s 107F(4). Consequently, it is for the prosecutor alone to decide whether to proceed with the remaining charges or reserve to the Crown the option of re-indicting all charges together in the event of a successful appeal. This latter option is likely to be attractive in situations where the remaining charges are minor, or evidentially significant for the charge under appeal.

Curiously, that option is not available in appeals against acquittal, where the same situation can arise. The prosecutor could, it is true, competently lead such evidence in a new prosecution without libelling the ancillary charges (s 119(6), (7)), but it is not immediately clear why the power to desert pro loco was not simply extended to this category of case.

10. Bail

Only one specific reference is made to bail. Where the court grants an adjournment for the prosecutor to consider an appeal and suspends the effect of the acquittal, it may allow bail, or order the detention of the accused in custody (but only if it considers there are arguable grounds of appeal): s 107A(7). But where the court proceeds to suspend the effect of the acquittal pending the outcome of an appeal, the relevant provisions are silent on the question of bail. It appears that in this and any other situation an application for review would have to be made under s 30 (s 107D).

11. Consideration of the appeal

The test to be applied by the High Court in all types of appeal is whether the acquittal, direction or finding “was wrong in law”: s 107C(2).

In considering an appeal, the High Court may review any direction, finding, decision, determination or ruling if it has a bearing on the acquittal, direction or finding appealed against: s 107C. So, for example, if the trial judge has ruled that certain evidence is inadmissible, but no type (5) appeal is sought on the point (or leave is refused), and the accused is subsequently acquitted at least in part due to that ruling, the judge’s ruling can be reviewed in a type (1) or (2) appeal.

While the terms of this section are wide enough to allow review of such matters even if they are not mentioned in the grounds of appeal, it would nevertheless be good practice to include in the note of appeal all matters the Crown wishes reviewed, since failure to do so might mean that the issue is not addressed by the trial judge in his report.

12. Disposal of appeal

If the High Court decides in an expedited appeal that an acquittal was wrong in law, it must quash the acquittal and direct that the trial is to proceed: s 107D(6).

In any other appeal against acquittal, if it decides that an acquittal was wrong in law, it must grant authority for a new prosecution if the prosecutor seeks that, unless it considers it would be contrary to the interests of justice to do so. In that event it will acquit the accused: s 107E.

For non-expedited type (3), (4) and (5) appeals (where the diet will of course have been deserted under s 107F), the court must allow a new prosecution unless it considers it would be contrary to the interests of justice to do so.

While the High Court therefore retains a discretion to grant authority for a new prosecution, in a case where a successful Crown appeal is heard during an adjournment of the trial it has no discretion over whether to permit proceedings to continue.

13. Fresh prosecutions

Where authority is granted for a fresh prosecution, the accused must not be charged with an offence more serious than the one of which he was acquitted in the earlier proceedings (type (1) and (2) appeals), or with an offence more serious than the one originally libelled (types (3) to (5)): new s 119(2)(b) and (c).

14. Unresolved issues

A number of matters not covered by the Act will require to be considered in future by the courts, including the following:

• the question of ancillary charges in appeals against acquittal raised above;
• the absence of provision concerning trials involving multiple accused;
• the absence of specific provision for a case in which, for one reason or another, the original jury cannot be recalled after a successful expedited appeal.

It remains to be seen how such issues will be resolved.

15. Conclusion

The Policy Memorandum accompanying the Criminal Justice and Licensing Bill records that cases in which the appeal provisions are used “are expected to be highly unusual”. Other Crown rights of appeal have been used sparingly, and it is safe to assume that the same will apply to the new rights of appeal. On the other hand, for the reason identified in the introduction, such appeals are likely to be more common than Lord Advocate’s references. I await the first example with interest, but would not be rash enough to speculate further on its nature.