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For my latest Blog, I’m sticking with Scotland’s public prosecution system.
The Lord Advocate, James Wolffe QC, has just won an interesting ruling before the Appeal Judges of the High Court of Justiciary.
The case in question is Crown Appeal under Section 74 by Her Majesty’s Advocate v Jason Gilmour [2019] HCJAC 74 HCA/2018/000542/XC.
The reason for the Crown’s appeal was that Mr Gilmour’s victim had subsequently died.
The simple question was this: could the Crown, having accepted Mr Gilmour’s guilty plea to the charge of aggravated assault, then pursue a subsequent prosecution against him for murder?
As Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge) noted:
“The charge of murder alleges that on 11 June 2012 the respondent [Gilmour] assaulted the deceased by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.”
Before the introduction of the Double Jeopardy (Scotland) Act 2011, it was a clearly established principle of Scottish criminal law that an accused who had assaulted a victim could be charged subsequently with either culpable homicide or homicide if the victim later died due to the injuries sustained by reason of the assault.
The introduction of the Act meant that some clarification of the law was required.
As Lady Dorrian, the Lord Justice Clerk stated in response to the Lord Advocate’s appeal:
“The rationale for this was that the crime of murder was a separate crime and “it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party”- HM Advocate v Stewart (1866) 5 Irv. 301. In Tees v HMA 1994 JC 12 the accused had pled guilty to a charge of assault under deletion of attempted murder, and was re-indicted for culpable homicide when the victim died.“
In delivering the Opinion of the Court, Lady Dorrian succinctly concluded that:
“Whatever may have been the position prior to the introduction of the 2011 Act … that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.“
Section 11 was the key part of the 2011 Act and the intention of the legislation was clearly to permit the possibility of a subsequent prosecution of the accused for murder – even in situations where s/he had previously faced a charge of attempted murder and had been acquitted.
In early 2019, Mr Gilmour’s had been prosecuted for his victim’s murder. He was convicted of culpable homicide and sentenced to a prison sentence of four and a half years. This has now been upheld by the Appeal Court.
A link to the judgement can be found below:
Copyright Seán J Crossan, 14 November 2019
Seán Crossan's Scots Law 