News In Focus

Judges vow to rein in additional appeal grounds

21 September 2012

Scotland's senior judges have vowed not to allow a repetition of a criminal appeal that went to over 30 procedural hearings before being finally argued, as the appellant was repeatedly given leave to develop his grounds of appeal.

The Lord Justice General Lord Gill, the Lord Justice Clerk Lord Carloway, and Lord Kingarth, yesterday refused the appeal by Sean Toal against his conviction in July 2005 for the murder of Paul McGilveray in August 2004. Toal was the only one of four accused to be convicted. Death was by stabbing.

Toal's first note of appeal was lodged six months after he was sentenced. Additional grounds were allowed to be lodged in October 2008 and October 2009. Toal changed his solicitors in 2007 and 2011. An attempt to lodge further grounds in 2011 was not pursued after an extension of time was refused. At a hearing in 2012 when counsel for Toal said he proposed to rely on an expert report which contradicted other expert evidence given at trial, the court said this was not covered by any of the current grounds of appeal but counsel did not attempt to formulate additional grounds. The difference concerned which knife was the likely murder weapon. A further expert had reported in 2008 that a different weapon might have been used from that spoken to at trial, but no gounds had been lodged based on that report.

Dismissing the various grounds of appeal, Lord Gill said there was "a cogent and logical case against the appellant that the jury were entitled to accept", and that the question of which knife inflicted the fatal wound was not crucial.

He then refused a further application to amend the grounds of appeal or allow additional grounds based on the expert opinion, said to be "in the interests of justice". Lord Gill said this was treating the objective of finality of appeals as "an achievement when attained; but otherwise as an irrelevance". That was a misconception, as was the view that "the need to determine appeals expeditiously and to achieve finality is somehow a separate and subordinate consideration to the interests of justice".

"In my opinion, he continued, "the need for finality and the interests of justice are not opposed concepts. The former is an aspect of the latter. There is a legitimate public interest in the maintenance of a jury verdict unless there is a substantial reason to doubt its integrity... Where there is a challenge to a jury's verdict, it is in the interests of justice that it should be brought to a final decision within a reasonable time."

Lord Carloway added: "Consistent with the idea that the need for finality is an aspect of justice itself, it should only be in exceptional cases, where cause is shown for the tendering of late grounds, that an appellant should be afforded an opportunity to present such grounds. The later grounds are tendered, the less accommodating the court should be in allowing the note of appeal to be amended".

"The indulgence afforded by the court to this appellant can only be described as extreme", he said, and the history of the appeal showed "continued procedural confusion" and a latitude allowed to the appellant despite the statutory timetable, "which is measured in weeks and not years". He concluded: "This degree of latitude cannot, in the interests of justice, be allowed to recur."

Click here to view the opinions.