Photo by Valentin Salja on Unsplash

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


Photo by Gemma Evans on Unsplash

A recent decision of the Appeal Court of the High Court Justiciary has provided further clarification on the law surrounding the issue of consent in situations where a person is accused of rape.

The decision itself is a classic example of Appeal Court judges interpreting the meaning of statutory provisions.

For many years in Scotland, rape had the following common law definition:

… a man having sexual intercourse with a woman by overcoming her will by force‘.

The above definition was later significantly amended by a majority decision of the Appeal Court of the High Court in Lord Advocate’s Reference No. 1 of 2001 2002 SLT 466. The effect of this ruling was the removal of the reference to force in the common law definition of rape. Thereafter, the presence (or absence) of consent to sexual conduct would be a vital issue for the prosecution’s case.

We have also moved on from the situation whereby the victims of rape are not just female. A reading of Section 1 of the Sexual Offences (Scotland) Act 2009 (the relevant legislation), which defines the crime of rape, makes it quite clear that men and women can be victims of this offence.

Section 12 provides that “consent” means “free agreement”. Section 13 states that free agreement is “absent” in certain circumstances, including where the complainer is “incapable because of the effects of alcohol or any other substance of consenting”.

I shall now turn to the case in question.

In GW v Her Majesty’s Advocate [2019] HCJAC 23 HCA/2018/423/XC, Lords Carloway, Menzies and Turnbull confirmed that a person who is asleep cannot give consent that s/he wishes to engage in sexual relations. Furthermore, their Lordships also ruled that such an individual cannot be deemed to have given prior consent to such a course of behaviour.

This appeal occurred because the partner (‘GW’) of a woman claimed that he had not raped her while she was sleeping. Part of his defence was that he had engaged in this type of conduct on previous occasions in the relationship and the woman had not objected to this behaviour. Furthermore, the partner claimed that such conduct was a continuing feature of their relationship and, therefore, as such it established a pattern of prior consent. In other words, the partner had a reasonable belief that the woman had consented to this type of sexual activity.

As previously discussed, the relevant legislation is the Sexual Offences (Scotland) Act 2009. What does consent actually mean? The judges were unambiguous in reaching their decision: a sleeping person is simply incapable of giving consent and, in such a situation, it is not possible for an accused to construe advance or prior notice of consent.

During their deliberations, the judges looked at the purpose of the Sexual Offences (Scotland) Act 2009 and considered evidence which had been presented to at Stage 2 of the passage of the Bill through the Scottish Parliament.

Lord Carloway, the Lord Justice General, in delivering the opinion of the Appeal Court stressed that the wording of Section 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 2009 (which defines the crime of rape) uses the words ‘consenting’ and ‘consents’. These words are in the present tense and, therefore, a previous course of dealings between the parties is not in itself enough to establish that there is prior or actual consent to sexual relations. Consent exists in the here and now when the act of sexual intercourse is being carried out.

Section 14 of the 2009 Act which specifically addresses the issue of consent while a person is asleep is extremely unambiguous in its meaning. Subsection (2) states:

A person is incapable, while asleep or unconscious, of consenting to any conduct.’

A link to the judgement of the Appeal Court can be found below:


Copyright Seán J Crossan, 2 May 2019

Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:


Copyright Seán J Crossan, 21 March 2019

Vulnerable witnesses

Photo by Milada Vigerova on Unsplash

In March 2017, Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge), introduced a new practice note for trials in the High Court of Justiciary which involved child and vulnerable witnesses. The practice note permitted more evidence to be taken by commission i.e. the witness’ evidence and cross-examination can be taken in advance of the trial. This means that vulnerable witnesses do not need to make a personal court appearance.

A link to the practice note can be found below:


BBC Scotland reported today that Lady Dorrian will head up a review into how trials involving sexual offences are carried out. The review will also involve key organisations such as the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.

It is now acknowledged by the Scottish Courts and Tribunals Service that the criminal courts are dealing with an increasing number of sexual offences.

The Scottish Parliament is currently looking at changing the law to allow victims of alleged sexual offences to pre-record their evidence and has introduced the Vulnerable Witnesses (Criminal Evidence)(Scotland) Bill.

The Bill’s broad approach – although welcomed by many MSPs – has been criticised by the Scottish Parliament’s Justice Committee which would like to see Scandinavian practices such as Norway’s Barnahus principle being incorporated.

The Barnahus principle relies heavily on a child victim undergoing one forensic interview in an environment where welfare support is readily accessible. Such an interview should should take place as quickly as possible after the alleged sexual offence has taken place.

Lord Carolway, the Lord Justice General, has publicly stated that victims of sexual offences should not be forced to make court appearances.

Lady Dorrian’s review does, however, acknowledge that any reforms contemplated to criminal procedure must protect the rights of an accused person. Article 6 of the European Convention on Human Rights, of course, guarantees a person’s right to a fair trial.

A link to a press release issued by the Scottish Courts and Tribunals Service in respect of the Dorrian review can be found below:


It will be interesting to see what recommendations come out of the Dorrian review.

A link to two articles on the BBC website can be found below:

MSPs back new approach to child victims of crime

Justice committee urges the government to adopt a Scandinavian model to deal young crime victims.

Sexual offence cases review by Scottish courts

The way people are treated by the courts during sexual offence cases is to be looked at.

Copyright Seán J Crossan, 20 March 2019


Photo by Dorian Hurst at Unsplash


In Chapter 1 of Introductory Scots Law, I discuss the importance of corroboration.  In a criminal trial, the prosecutor must prove that the accused is guilty of a crime beyond  reasonable doubt. This is a very strict burden in that the prosecution must be able to corroborate its evidence against the accused. Corroboration means that there must be at least two independent sources of evidence such as witness testimony and the use of expert and forensic evidence. Reasonable doubt is a nagging doubt which would lead a reasonable person to the conclusion that it would be unsafe and unjust to find the accused guilty. The requirement of corroboration was most recently challenged by Lord Carloway, now Scotland’s Lord Justice General, when he was asked to undertake a Review of the Scottish criminal justice system at the request of the Scottish Government.

On 17 November 2011, Lord Carloway (then the Lord Justice Clerk) controversially suggested in his published Report that the requirement of corroboration be abolished. This proposal did not find universal favour and, although the Scottish Government did attempt to implement this reform by way of the Criminal Justice (Scotland) Bill in 2013, it was abandoned in the teeth of strong opposition and did not form part of the eventual Criminal Justice (Scotland) Act 2016. Notably, Police Scotland, the Crown Office and the Procurator Fiscal Service had all favoured the abolition of the requirement for corroboration.

Recently,  the Appeal Court of the High Court of Justiciary has considered the issue of corroboration. I shall now turn my attention to the Court’s opinion.

Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC

The question before the Appeal Court (regarding a reference from the Sheriff Appeal Court) was principally concerned with whether CCTV footage from the locus of the alleged offence could be regarded as sufficient corroboration to prove the charge against the accused.

The accused (Shuttleton) had been charged with the offence of careless driving under Section 3 of the Road Traffic Act 1988 (as amended). She had been involved in a collision with another motor vehicle. There were no independent witnesses to the incident. A Police officer, PC Birrell, who was part of a mobile unit, came across the aftermath  of the collision. He and his colleague were able to view the collision later on CCTV footage (which a City of Glasgow Council camera had captured). PC Birrell had found the vehicles of the accused and another driver blocking the road. He was soon after joined by his colleague, PC Russell, and by this time the vehicles had been moved to the side of the road.

Upon viewing the CCTV footage, the police officers noted that the accused had been driving her white VW Polo; she indicated to turn right, but then without warning she turned left; this caused a collision with a vehicle behind her.

At the trial in the Justice of the Peace Court, the accused was convicted of the Section 3 offence, but  her defence agent objected to the provenance or authenticity of the CCTV footage. The Justice dismissed this objection and concluded that the footage was real evidence which was then proof of fact.

That said, the Justice found that the case raised an issue of “novelty and complexity”:

Whether the evidence of the two police officers who attended after the collision and viewed the CCTV footage could amount to corroboration or whether it is no more than a descriptive piece of (uncorroborated) real evidence.

The accused was permitted to appeal to the Sheriff Appeal Court which then submitted a reference to the Appeal Court of the High Court of Justiciary.

The Appeal Court was asked to consider the following issues:

(i) In situations where the actus reus (wrongful act) was caught on CCTV footage and was the sole piece of evidence, could the evidence of the two police officers who attended the locus and later viewed the CCTV footage be enough to establish corroboration or should it be regarded as having the status of no more than a descriptive piece of real evidence?

(ii) In situations where the act reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, can the footage alone be regarded as sufficient evidence of the actus reus of the offence?

(iii) If the actus reus is caught on CCTV footage; is the only evidence of said act; and its provenance has been established, is the fact finder entitled to establish that the act has taken place based upon his viewing of the footage?

In its submission, the Sheriff Appeal Court made reference to a previous case – Gubinas & Radavicius v HMA [2017] SCCR 463 – that it was “at least arguable that … a corroborated case can be established on the basis of a single piece of CCTV alone, where the provenance of the CCTV is properly established”.

The “Cluedo” Reference

Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):

….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.

On the basis of the “Cluedo” reference, could it now be interpreted that CCTV footage had some sort of special evidential status?

The Appeal Court Opinion

Lady Dorrian, the Lord Justice Clerk, sitting with Lords Drummond-Young and Turnbull gave the unanimous opinion of the Court.

She made a number of really helpful statements in relation to the use of CCTV footage:

In Gubinas the court made it clear (para 56) that the CCTV footage was but one source of evidence, comparable to a witness speaking to events seen or heard, making it equivalent simply to one source of evidence. This did not suggest that the evidence was available as corroborated proof of fact, rather that further, corroborative evidence was required for sufficiency of proof. That this was so could be seen in the discussion of the role such evidence played in the issue of identification.”

Very wisely, Lady Dorrian went on to make a comparison with the use of fingerprint or DNA evidence. She noted (often) that fingerprint or DNA evidence on their own would not be sufficient grounds for convicting an accused. They would certainly be relevant, but not conclusive for corroboration purposes.

With regard to CCTV images, the authenticity (or provenance) of the footage must be established and then a “further cross-check” must be carried out. In Shuttleton case, the Police officers were able to demonstrate that the events recorded in the footage (i.e. the collison) were accurate. In fact, a nearby shop had a CCTV camera and the officers were able to obtain its footage which had also captured the collision. Although the footage from the shop camera was not shown in evidence at the Justice of the Peace trial, Lady Dorrian stated that this would have provided the “necessary corroboration”.

She concluded by stating that:

Footage from two separate cameras would be sufficient, as long as
these were two systems separate from each other.”

Her Ladyship in response to the three questions posed in the appeal reference (above) arrived at the following conclusions:

(i) No, it was not possible for the evidence of two police officers who arrived at the locus after the actus reus had been committed to provide sufficient grounds for corroboration. The evidence of the officers should be regarded as descriptive only.

(ii) Yes, in the circumstances, the CCTV footage could establish grounds for proving that the actus reus had indeed taken place.

(iii) Yes, in these circumstances, the fact finder (i.e. the police officers) after viewing the CCTV footage would have sufficient grounds for believing that the actus reus had been committed.


The Sheriff Appeal Court was quite correct to refer the issue of the evidential status of CCTV footage to the High Court of Justiciary simply because this was a matter which was routinely raised at many trials.

The High Court was not saying that CCTV footage should have special status for corroboration purposes. Its authenticity or provenance must first be established. It will then be important to determine whether the footage alone can establish evidence of the actus reus; and, finally, it will be up to the fact finder viewing it to conclude that the actus reus has taken place.

Assuming that these requirements are met, CCTV footage will be a very powerful form of evidence which can be used to establish corroboration. The “Cluedo” reference in Gubinas & Radavicius (above) can now be fully understood in the light of the Shuttleton opinion.

A link to the Appeal Court’s judgement can be found below:


Copyright – Seán J Crossan, 1 March 2019