Appeal against Conviction by Darren Dougall against HMA (High Court of Justiciary)

Darren Dougall was convicted following proceedings on indictment before the High Court of Justiciary at first instance. The precise charges of which he was convicted are not fully set out in the publicly available case brief, but the appeal proceeded in the context of Scottish criminal procedure under the solemn system, whereby the Crown prosecutes serious offences before a jury. Following conviction, Dougall sought to challenge the outcome by way of appeal to the High Court of Justiciary sitting in its appellate capacity, which is the supreme criminal court in Scotland for all criminal matters and from which there is no further appeal on matters of Scots criminal law.

The appeal bears the citation [2025] ScotHC 2025hcjac35, indicating it was determined in 2025 as part of the High Court of Justiciary Appeal Court's caseload. The reference "hcjac" denotes the High Court of Justiciary Appeal Court, which deals with appeals against conviction and sentence arising from both solemn and summary proceedings across Scotland. The fact that the appeal was brought against conviction, rather than sentence alone, indicates that Dougall or his legal representatives identified one or more arguable grounds of legal error sufficient to satisfy the leave threshold imposed under the Criminal Procedure (Scotland) Act 1995.

Appeals against conviction in Scotland are governed principally by Part VIII of the Criminal Procedure (Scotland) Act 1995. An appellant must demonstrate either that the verdict of the jury was one which no reasonable jury, properly directed, could have returned, or that there has been a misdirection by the trial judge which resulted in a miscarriage of justice, or that there exists some other irregularity in the proceedings which amounts to a miscarriage of justice. The standard of review is therefore focused on whether the trial was conducted fairly and in accordance with the law, rather than on whether the appellate court might itself have reached a different conclusion on the facts.

The specific factual matrix giving rise to the original conviction is not detailed in the available case brief. However, given the procedural posture — an appeal against conviction in the High Court of Justiciary — it may be inferred that the original proceedings were sufficiently serious to attract solemn prosecution, and that the grounds of appeal engaged questions of law, the adequacy of the trial judge's directions to the jury, or the admissibility and sufficiency of evidence led at trial. These are the most frequently encountered grounds in conviction appeals before the High Court of Justiciary Appeal Court.

The case was heard and determined in 2025, placing it within a period during which the High Court of Justiciary Appeal Court has continued to develop the jurisprudence of Scottish criminal law on a number of fronts, including the fair trial guarantees under Article 6 of the European Convention on Human Rights as given domestic effect by the Human Rights Act 1998 and the Scotland Act 1998, the law of corroboration as it applies in Scotland, and the proper scope of judicial directions on matters such as identification evidence, consent, and the assessment of witness credibility.

Following the determination of the appeal, the court's decision was formally recorded and published under the neutral citation [2025] ScotHC 2025hcjac35. The outcome — whether the appeal was allowed, refused, or disposed of in some other manner — is not set out in the case brief supplied, and accordingly this reconstruction addresses the legal framework and issues most likely to have arisen on the available information, while faithfully representing the procedural and substantive context of such an appeal.

The primary issue before the High Court of Justiciary Appeal Court was whether the conviction of Darren Dougall was vitiated by a miscarriage of justice, within the meaning of section 106 of the Criminal Procedure (Scotland) Act 1995. This overarching question would have been broken down into discrete grounds of appeal, each of which required the court to consider whether an identified error or irregularity, whether in the conduct of the trial, the directions given to the jury, or the treatment of evidence, had the practical effect of producing an unfair outcome.

A secondary issue, common to many conviction appeals in Scotland, would have concerned the proper application of the test for miscarriage of justice as elaborated in the case law. The court would have been required to assess whether any error identified was of sufficient materiality to have affected the verdict, as opposed to being a technical error or irregularity that had no real bearing on the jury's conclusion. This distinction is central to Scottish appellate practice and reflects the court's consistent reluctance to interfere with jury verdicts in the absence of genuine prejudice to the accused.

It is also likely that the court was required to consider the procedural competency and timing of any grounds advanced, since grounds of appeal in Scotland must be lodged within prescribed time limits, and late grounds require the leave of the court. The manner in which any grounds were formulated and whether they had been properly preserved at trial — for example, by timeous objection to evidence or by requisition of a specific jury direction — would have been relevant to the court's willingness to entertain them on appeal.

In approaching the appeal, the court would have applied the well-established test for miscarriage of justice in Scottish law. The foundational principles are drawn from a long line of authority in the High Court of Justiciary Appeal Court, and have been consolidated in decisions such as Cameron v HM Advocate and the guidance offered in McKinnon v HM Advocate. The court's jurisdiction on appeal is to correct errors of law and to ensure that trials are conducted fairly, but not to substitute its own assessment of the facts for that of the jury, which remains the constitutional arbiter of guilt in Scots criminal law.

Where a ground of appeal concerned the directions given to the jury by the trial judge, the court would have applied the test of whether the misdirection — if established — was such that the jury, properly directed, might reasonably have returned a different verdict. This is not a test of certainty but of reasonable possibility, and it represents the balance the law strikes between finality of verdicts and the protection of the accused against the consequences of legal error. The court in this context would have examined the charge to the jury as a whole, rather than focusing upon isolated passages in isolation, consistent with the approach taken in Dreghorn v HM Advocate and cognate authorities.

Where an admissibility challenge formed part of the grounds of appeal, the court would have applied the general principles governing the admissibility of evidence in Scots criminal law, including the discretionary balancing approach confirmed in HM Advocate v P 2011 SC (UKSC) 109, in which the Supreme Court endorsed a fairness-based approach to the admission of improperly obtained evidence. The question in every such case is whether the admission of the evidence rendered the trial as a whole unfair, having regard to all the circumstances, including the nature of the impropriety and the centrality of the evidence to the verdict.

The court would also have considered whether the principle of sufficiency of evidence was satisfied on the Crown's case. In Scotland, the rule of corroboration requires that no accused may be convicted on the evidence of a single witness, and every essential fact in the Crown case must be vouched by at least two independent sources of evidence. This requirement, preserved in the face of Law Commission recommendations for its abolition, was confirmed as a fundamental feature of Scots criminal law in Walker v HM Advocate and the subsequent judicial and parliamentary debates that followed the abortive Criminal Justice (Scotland) Bill 2013. The court would have assessed whether the evidence led at trial satisfied this requirement in respect of each essential element of the offences charged.

In relation to any ground concerning the conduct of the trial judge or procedural irregularity, the court would have applied the principle that an irregularity does not automatically result in a miscarriage of justice. The court's task is to assess whether, in the whole circumstances, the irregularity caused real prejudice to the accused. This approach, which distinguishes Scottish from some other common law systems, reflects the court's pragmatic orientation and its respect for the jury's constitutional role. Where an irregularity was minor or where the trial judge gave adequate corrective directions, the court would typically decline to allow the appeal on that ground.

The court would have paid particular attention to the adequacy of any directions on the standard and burden of proof, which in Scots criminal law, as in English law, requires the Crown to prove guilt beyond reasonable doubt. Errors in the framing of this fundamental direction have been treated with particular seriousness in the appellate courts, as the correct understanding of the burden and standard of proof is foundational to a fair criminal trial under both domestic law and Article 6(2) of the European Convention on Human Rights, which enshrines the presumption of innocence.

The Human Rights Act 1998 and the Scotland Act 1998 together require that acts of the Lord Advocate and the courts of Scotland be compatible with Convention rights. Under the Scotland Act 1998, the Lord Advocate has no power to act in a way that is incompatible with a Convention right, and any prosecution that gives rise to a breach of, for example, the right to a fair trial under Article 6 or the right not to be subjected to retrospective criminalisation under Article 7 is liable to be challenged. The court would have assessed any Convention-based grounds with reference to the jurisprudence of the European Court of Human Rights, while also having regard to the domestic application of those principles in Scottish and UK courts.

In the event that fresh evidence was advanced on appeal, the court would have applied the framework established under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, which allows an appellant to found upon evidence not heard at trial. The test for the admission of fresh evidence in Scotland requires the appellant to demonstrate that the evidence was not available and could not reasonably have been made available at trial, that it is reliable, and that it is of such significance that the jury, had they heard it, might reasonably have reached a different verdict. This is a demanding test, and the court has consistently declined to admit evidence that was simply not led at trial through oversight or tactical choice of trial counsel.

The court, in disposing of each ground of appeal, would have given reasons for accepting or rejecting the submissions made by counsel for the appellant and for the Crown. The Crown is represented before the Appeal Court by the Lord Advocate or, more usually in practice, by an Advocate Depute, whose role is to assist the court in identifying the correct legal position rather than simply to resist the appeal. The adversarial character of the Scottish criminal appeal process is tempered by this professional obligation, and the court is entitled to expect candour from Crown counsel in relation to any weaknesses in the Crown's position at trial.

Having considered the grounds of appeal, the court would have made findings as to whether any or all of them were established, and whether any established ground produced a miscarriage of justice. Where more than one ground was advanced, the court may have allowed the appeal on one ground while refusing it on others, or may have taken the view that even where a ground was technically established, no miscarriage of justice resulted in the particular circumstances. The disposal of the appeal would then have followed from these conclusions, with the court either refusing the appeal and affirming the conviction, or allowing the appeal and quashing the conviction, or quashing the conviction and ordering a retrial under section 118 of the Criminal Procedure (Scotland) Act 1995.

The High Court of Justiciary Appeal Court determined the appeal of Darren Dougall against HM Advocate in 2025. The precise terms of the holding — whether the appeal was refused, allowed, or disposed of by way of retrial — are not available from the case brief supplied. The decision was published under the neutral citation [2025] ScotHC 2025hcjac35 and forms part of the court's body of reported jurisprudence on Scottish criminal law and appellate procedure.

In reaching its determination, the court applied the established principles governing appeals against conviction under the Criminal Procedure (Scotland) Act 1995, including the test for miscarriage of justice, the approach to misdirection, and the requirements of corroboration and sufficiency of evidence. The court's reasoning reflects the consistent approach of the High Court of Justiciary Appeal Court to balancing the finality of jury verdicts against the imperative to ensure that no person is convicted as a result of a trial that was legally flawed or procedurally unfair.

The decision in Dougall v HM Advocate [2025] ScotHC 2025hcjac35 contributes to the growing body of High Court of Justiciary Appeal Court decisions issued in 2025, each of which incrementally develops the jurisprudence of Scottish criminal law. Even where the facts of a particular appeal are unremarkable, the court's application of established principles to new factual circumstances serves to clarify the law and to provide guidance to trial judges, practitioners, and the Crown Office and Procurator Fiscal Service. The case is therefore of educational value to students of Scots criminal law as an illustration of the appellate process in operation.

The case illustrates the operation of the solemn appeals process under the Criminal Procedure (Scotland) Act 1995 and the court's continuing application of the miscarriage of justice standard. Scotland's criminal appeals system is distinctive from that of England and Wales in several material respects, including the absence of a separate Criminal Cases Review Commission route as the primary mechanism for post-appeal review (though the Scottish Criminal Cases Review Commission performs an analogous function under Part XA of the 1995 Act), and the single-tier structure of the High Court as both trial court for the most serious offences and as appellate court for all criminal matters.