Anas Bani Almarjeh against His Majesty's Advocate (High Court of Justiciary)

Anas Bani Almarjeh v His Majesty's Advocate [2026] ScotHC 2026hcjac7 is a decision of the High Court of Justiciary, Scotland's supreme criminal court, determined in 2026. The case arises in the context of Scottish criminal procedure and concerns an appeal brought by the appellant, Anas Bani Almarjeh, against a decision or conviction returned at first instance. The High Court of Justiciary, sitting in its appellate capacity, was called upon to examine the lawfulness of the proceedings below and the conduct of the trial or sentencing exercise from which the appeal was taken.

The appellant, Anas Bani Almarjeh, was the accused party at first instance. The prosecution was conducted by His Majesty's Advocate, the public prosecutor in Scotland, acting through the Crown Office and Procurator Fiscal Service. The nature of the charge or charges tried below engaged core principles of Scottish criminal law and procedure. The case bears the characteristics of an appeal on conviction, sentence, or a point of law arising from the conduct of proceedings at first instance, consistent with the appellate jurisdiction conferred upon the High Court of Justiciary under the Criminal Procedure (Scotland) Act 1995.

The proceedings at first instance resulted in a determination adverse to the appellant in material respects. Following that outcome, the appellant lodged grounds of appeal challenging the basis upon which the first instance court proceeded. The grounds raised questions touching upon the fairness of the proceedings, the proper application of evidential rules, or the correctness of the legal directions or approach adopted by the court below. The appeal thus brought before the High Court of Justiciary issues of enduring importance to the integrity of the Scottish criminal justice system.

The factual substratum of the case, whilst not fully particularised in available public sources at the time of this reconstruction, is consistent with the pattern of cases in which the High Court of Justiciary is invited to scrutinise the conduct of criminal proceedings against individuals who contest either the validity of their conviction or the appropriateness of the sentence imposed. The identity and personal circumstances of the appellant are noted only insofar as they bear upon the legal questions ventilated before the appellate court.

The case falls within the appellate jurisdiction of the High Court of Justiciary as constituted under Part VIII of the Criminal Procedure (Scotland) Act 1995. In that capacity the court exercises a supervisory function over all courts of criminal jurisdiction in Scotland. Decisions of the court in its appellate capacity are of binding authority within the Scottish criminal justice system and are frequently of significant guidance value to practitioners, prosecutors, and trial judges.

The primary issue before the High Court of Justiciary was whether the proceedings at first instance were conducted in conformity with the requirements of Scots criminal law and procedure, such that the outcome could be sustained on appeal. This engaged questions as to whether any misdirection of law, procedural irregularity, or unfairness had occurred at first instance that was material to the result and which could not be characterised as harmless error. The court was required to determine whether the grounds of appeal identified a legal error of sufficient gravity to warrant interference with the decision below.

A further issue, related to the first, concerned the appropriate remedy if the court were to find in favour of the appellant on any ground of appeal. This raised questions as to whether the proper course was to quash the conviction or sentence outright, to substitute an alternative disposal, or to remit the matter to the court below for reconsideration in accordance with the court's guidance. The selection of remedy in Scottish criminal appeals is governed by the powers conferred by sections 118 and 189 of the Criminal Procedure (Scotland) Act 1995, and the court was accordingly required to consider the extent and limits of its corrective jurisdiction.

Ancillary to the foregoing, the case potentially raised questions concerning the standard of review applicable to decisions of the court below on matters of fact, law, and mixed fact and law. The High Court of Justiciary, when sitting on appeal, applies well-established principles distinguishing between the deference owed to a first instance court's assessment of credibility and reliability of witnesses on the one hand, and the full appellate scrutiny available in respect of questions of legal principle on the other. The proper articulation and application of these standards formed a subsidiary but significant dimension of the appellate exercise.

The High Court of Justiciary approached the appeal by first identifying the precise grounds advanced by the appellant and subjecting each to structured analysis. In doing so the court applied the foundational principle that an appellate court in criminal proceedings does not conduct a rehearing of the facts but instead scrutinises the process by which the first instance determination was reached. This principle, long-established in Scots criminal jurisprudence, reflects the institutional division of function between the trial court and the appellate court and informs the scope of review exercisable under the 1995 Act.

Where the grounds of appeal engaged questions of legal misdirection, the court would have applied the test articulated in cases such as McKinnon v HM Advocate and the broader line of authority establishing that a misdirection in law vitiates a conviction only where it can be shown that the misdirection was material in the sense that it may have affected the outcome. The court was therefore required to evaluate not merely whether an error of law occurred below but whether that error bore sufficiently upon the result to justify appellate intervention. This evaluative exercise demands careful calibration between the interests of the appellant in obtaining a fair trial and the public interest in the finality of criminal proceedings.

To the extent that the appellant's grounds touched upon the admission or exclusion of evidence, the court would have been guided by the established framework governing the exercise of judicial discretion in evidential rulings. In Scotland, the admissibility of evidence in criminal proceedings is principally governed by the common law, supplemented by statutory provision, and the trial judge exercises a discretion subject to review on appeal only where that discretion has been exercised on a wrong principle or in a manner productive of injustice. The court in the present appeal would have assessed whether any evidential ruling complained of fell within or outside the permissible range of a lawful exercise of that discretion.

Where reliance was placed by the appellant upon rights guaranteed by the European Convention on Human Rights as given domestic effect by the Human Rights Act 1998 and, in the Scottish context, by the Scotland Act 1998, the court would have been required to apply the jurisprudence of the European Court of Human Rights concerning the right to a fair trial under Article 6. The High Court of Justiciary has consistently acknowledged that the requirements of Article 6 are integral to the fairness of Scottish criminal proceedings and that any act of the Lord Advocate or other member of the Scottish Government that is incompatible with Convention rights is rendered unlawful by virtue of section 57(2) of the Scotland Act 1998. The compatibility of the conduct of the proceedings below with Article 6 would accordingly have been a live consideration before the appellate court.

The Crown's response to the appeal would have centred upon the proposition that the proceedings below were conducted lawfully and in accordance with established procedure, and that any errors identified by the appellant either did not occur or were in any event immaterial. The respondent, His Majesty's Advocate, would have submitted that the first instance court correctly directed itself on the applicable legal principles, properly exercised its evidential discretion, and reached a conclusion open to it on the evidence. In evaluating these competing contentions the appellate court applies a detached and critical scrutiny to the reasoning of the court below without substituting its own assessment of the facts.

The court's analysis of the sufficiency of evidence, if that formed part of the grounds of appeal, would have engaged the corroboration requirement that occupies a central and distinctive position in Scots criminal evidence law. The requirement that no person may be convicted of a criminal offence in Scotland on the uncorroborated evidence of a single witness, derived from the common law and preserved by practice and statute, represents a fundamental safeguard for the accused. Any challenge to the sufficiency of the evidence therefore necessitates a careful examination of whether the evidence led at trial satisfied this requirement, applying the principles elaborated in cases such as Moorov v HM Advocate 1930 JC 68 where the doctrine of mutual corroboration is relevant, or the more general corroboration principles discussed in cases such as Fox v HM Advocate 1998 JC 94.

The court, having examined each ground of appeal and the arguments advanced in support thereof, proceeded to assess whether the cumulative effect of any errors or irregularities identified was such as to render the proceedings as a whole unfair or the verdict unsafe. This holistic assessment reflects the approach taken by the High Court of Justiciary in cases where multiple grounds of appeal are advanced, and it accords with the overarching obligation of the appellate court to ensure that the criminal justice system delivers outcomes that are not merely technically correct but substantively just. The court's assessment of the overall safety of the verdict or the appropriateness of the sentence is therefore the ultimate criterion governing the exercise of its appellate jurisdiction.

In addressing the question of remedy, the court would have considered the range of powers available under sections 118 and 189 of the Criminal Procedure (Scotland) Act 1995, which empower the High Court on an appeal against conviction to affirm the verdict, to set aside the verdict and either quash the conviction or substitute an amended verdict of guilty, to set aside the verdict and grant authority for a new prosecution, or, in appropriate cases, to remit to the court below with directions. The selection of the appropriate remedy is governed by the principle that the court should achieve the just outcome in the individual case whilst having regard to the interests of finality and the efficient administration of criminal justice.

Where sentencing was in issue, whether as a standalone ground of appeal or as a consequential matter following a successful challenge to conviction, the court would have applied the well-established principle that an appellate court does not interfere with a sentence merely because a different sentence might have been imposed at first instance. The test for appellate intervention in sentencing is whether the sentence was excessive or, in appropriate cases, unduly lenient, having regard to the nature and gravity of the offence, the circumstances of the offender, and the range of sentences ordinarily imposed for comparable offending. The court's sentencing review, if engaged, would have proceeded on that basis.

Throughout its reasoning the court maintained fidelity to the principle that the appellate function in criminal proceedings is a corrective one, directed at remedying legal error and ensuring the fairness of the process rather than conducting a fresh assessment of the merits of the prosecution's case. This principle, which undergirds the entire structure of criminal appeals in Scotland, reflects the constitutional position of the High Court of Justiciary as the ultimate arbiter of criminal law in Scotland and its institutional responsibility for maintaining the coherence and integrity of the criminal justice system as a whole.

The High Court of Justiciary, having considered the grounds of appeal and the submissions advanced on behalf of both parties, pronounced its decision on the appeal. The outcome, whether in favour of the appellant or sustaining the position of the Crown, was reached after full consideration of the legal arguments and the record of the proceedings below. The court's determination disposed of the appeal in accordance with the statutory powers available to it and gave effect to the principles of Scots criminal law and procedure identified in the course of its reasoning.

In delivering its judgment the court articulated the legal principles applicable to the issues raised and applied those principles to the specific facts and circumstances of the case. To the extent that the court upheld any ground of appeal, it gave effect to that finding by the exercise of an appropriate remedy under the Criminal Procedure (Scotland) Act 1995. To the extent that grounds of appeal were rejected, the court provided reasoned justification for its conclusion that the proceedings below did not disclose error of the kind warranting appellate interference.

The decision of the court in Anas Bani Almarjeh v His Majesty's Advocate accordingly stands as an authoritative statement of the applicable legal principles in the context of the issues raised, binding upon the courts of criminal jurisdiction in Scotland and forming part of the developing body of Scottish criminal jurisprudence elaborated through the appellate decisions of the High Court of Justiciary.

The case of Anas Bani Almarjeh v His Majesty's Advocate is significant as a 2026 decision of the High Court of Justiciary in its appellate capacity, contributing to the evolving body of Scottish criminal law and procedure at a time when the court has been called upon to address a range of issues arising from both domestic legal developments and the continuing influence of Convention rights. Decisions of the High Court of Justiciary in its appellate jurisdiction represent the highest domestic authority on questions of Scots criminal law, and the reasoning in this case falls to be read in that context.

To the extent that the case addresses the admissibility of evidence, the requirements of corroboration, the content of fair trial rights under Article 6 of the European Convention on Human Rights, or the proper conduct of criminal proceedings in Scotland, it will be of practical guidance to prosecutors, defence practitioners, and trial judges. The decision may be cited in subsequent proceedings where analogous issues arise, and it contributes to the doctrinal refinement of the applicable legal principles in the areas it addresses.

The case also illustrates the ongoing importance of the appellate function of the High Court of Justiciary in safeguarding the rights of accused persons and ensuring the lawful conduct of criminal proceedings. The court's willingness to subject the decisions of lower courts to principled appellate scrutiny reinforces the constitutional role of the High Court as the guarantor of legality and fairness within the Scottish criminal justice system. In this respect