Quinn v HM Advocate

[1] The appellant's appeal against conviction was refused by a differently constituted court on 8 December 2010 . This is an application for leave to appeal to the Supreme Court of the United Kingdom against a decision of 3 September 2010 to refuse leave to amend the grounds of appeal. It came before the court on 15 March 2011 having been made in late February.

[4] The judge directed the jury that the DNA evidence on its own was sufficient for a conviction. An appeal was taken on the basis that this was a misdirection, as was an alleged direction that the jury could draw an inference of guilt "from what the accused said at interview". The court, in refusing the appeal on the latter ground, explained that such a direction had not been given. What the trial judge had said was that an inference could be drawn if any innocent explanation tendered by the appellant at interview were rejected.

[5] The appellant lodged his Note of Appeal on 23 November 2009 . On 30 August 2010 , over a year after the conviction, the appellant sought leave to amend his grounds of appeal to include a point based upon the absence of an opportunity to consult with a solicitor prior to the interview. It was accepted in the ground that the Crown had not relied upon the interview, but it was maintained that the trial judge's reference to it in his directions had, in some unspecified manner, resulted in an unfair trial. An associated devolution minute was also lodged.

[6] The appellant's trial took place after Salduz v Turkey (2008) 49 EHRR 421 but before McLean v HM Advocate 2010 SCCR 59. Yet no objection had been taken to the admissibility of the interview. No devolution issue was raised, as it could have been, during the trial proceedings in terms of the Act of Adjournal (Criminal Procedure Rules) 1996 (rule 40.2). That is not at all surprising. The interview at least contained some explanation about how the appellant's DNA might have got onto the balaclava. The appellant elected not to give any other explanation and did not give evidence.

[7] When the court came to consider the application to amend, it had before it first an attempt by the appellant to raise a devolution issue in the course of appellate proceedings, when the point ought, if it were to be taken, to have been advanced prior to the trial. No cause was stated in terms of the Act of Adjournal (rule 40.5) as to why a devolution issue should be raised at this late stage. On this basis alone, the application fell to be refused.