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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> KENNETH ANTHONY PATON MILLS v. HER MAJESTY'S ADVOCATE [2001] ScotHC 39 (11th June, 2001) URL: http://www.bailii.org/scot/cases/ScotHC/2001/39.html Cite as: [2001] ScotHC 39

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KENNETH ANTHONY PATON MILLS v. HER MAJESTY'S ADVOCATE [2001] ScotHC 39 (11th June, 2001)

[1] In February 1999, for the reasons which we gave at the time, this court continued the appeal in order to hear certain evidence. See Mills v. H. M. Advocate 2000 J.C. 216. In the event we heard two witnesses for the appellant: his co-accused, James Reilly, and James Wardlaw, a solicitor whose firm acted for Reilly in the original proceedings and who had himself taken instructions from him on 5 July 1996 at the full committal stage. We also heard evidence on behalf of the Crown from Constable Susan Miller. We should record that, although the appellant's agents had lodged a devolution issue shortly before the continued hearing, Mr. Shead, who appeared for the appellant, explained that it covered the same ground and did not add anything. He did not address us separately on that issue and was content for us to deal with the appeal on the basis of the supplementary grounds of appeal.

[2] Counsel were agreed that the opinion of the court on the previous occasion contained an accurate summary of the version of the evidence which the jury must have accepted. As we explained in that opinion, the principal issue at the trial was the identity of the driver of the car which had been involved in the events of Charge 2. That was a charge of assault to severe injury of a Constable Pennycook, who was dragged along by the car. At the trial Constable Pennycook and the officer accompanying him, Constable Ramsay, gave evidence identifying the appellant as the driver and Reilly as the passenger. Prior to the trial the appellant had lodged a special defence of alibi and incrimination, to the effect that at the relevant time the driver had actually been a Darren Beaumont and that the appellant himself had been in another car. At his trial the appellant gave evidence to that effect. In convicting the appellant, the jury must have rejected that evidence. The contention of the appellant was that there had, however, been a miscarriage of justice based on the existence and significance of evidence which had not been heard at the original proceedings (Section 106(3) of the Criminal Procedure (Scotland) Act 1995). More particularly, the miscarriage was said to consist in the existence and significance of the evidence of the co-accused, Reilly, to the effect that he had indeed been a passenger in the car and that the driver had been Beaumont rather than the appellant. At the earlier hearing of the appeal the court had before it an affidavit from Reilly to this effect.

[3] In the light of the concession made by the Advocate Depute who appeared at the earlier hearing - as to the soundness of which the court expressed no view - the court proceeded on the basis that Reilly's evidence could fall within the terms of Section 106(3) and (3A) of the 1995 Act. The only question, therefore, was whether, having heard the evidence, we considered that its "significance" was such that there had been a miscarriage of justice. It is plain, of course, that, if credible and reliable, Reilly's evidence would be relevant to the central issue at the trial, the identity of the driver of the Ford Escort. But on the test of the "significance" of Reilly's evidence Mr. Shead invited the court to apply the guidance given in paragraph 24 of the opinion of the court delivered by the Lord Justice Clerk in Kidd v. H. M. Advocate 2000 J.C. 509 at p. 517 F - G:

[4] Having seen and heard Reilly give the evidence in question, we are satisfied, applying the Kidd test, not only that his evidence was not credible but that it could not be regarded by a reasonable jury as being credible. In part, of course, our conclusion was based on the demeanour of Reilly in the witness box, but in part it was based on more tangible factors which it is possible to identify without narrating his evidence in full.

[5] In broad outline, Reilly's evidence was to the same effect as the evidence which the appellant gave at his trial. More particularly, Reilly had been in the company of the appellant and Beaumont on 26 June. They had been drinking and were out to have a good night. Reilly was wearing trainers, blue denim jeans and a three-quarter length black jacket, which had been a Label Production at the trial. Beaumont was wearing a woollen jersey with navy blue horizontal bars. At that time he smoked. The first car which they stole on the occasion in question was a Rover Metro G.T.I. in which they drove around the city and ended up in the Oxgangs area. There they stole a Rover Metro G.T.A. They now had two stolen cars: the appellant drove the G.T.I., while Reilly and Beaumont were in the G.T.A. They drove around once more until they came to the Murrayfield area where they saw a Ford Escort - this is the car, registration number J503 FST, which is the subject of the charge of theft on the indictment (Charge 1) and which was involved in the assault on Constable Pennycook. Reilly said that he himself and Beaumont stole the car. About this time, the appellant did a wheelspin and drove away in the G.T.A. When they had stolen the car, Reilly and Beaumont saw a Ford Fiesta coming towards them. It flashed its headlights and pulled up beside them in such a way that the two drivers were next to one another. Reilly knew immediately that the occupants of the other car were police officers, since they were in uniform. They said to Beaumont that the headlights were not on. Reilly was known to the police and so he did not want them to see his face. He thought that the officers were giving them a spiel so that they could lift them. The police officer who was the passenger got out and ran round the back of the other car He grabbed on to the driver's window of the Escort and, when Beaumont began to drive off, he said "I'm a police officer. Stop the car." The car was driven for some distance with the police officer holding on and face to face with the driver. Eventually, the police officer let go and Beaumont drove on towards the roundabout at the B and Q store, where he turned right and they found themselves in a dead-end. Beaumont ran away. Reilly himself ran down a path and slipped and fell, before hiding in bushes over a fence. Police officers found him there and detained him. This involved handcuffing him, handcuffing his legs, chucking him over the fence and dragging him down the pathway. Quite a few officers punched and kicked him, saying to him "You've killed him, fucking killed him" - referring to Constable Pennycook. Reilly did not really have any injuries as a result of the assault but this was, he said, because police officers would not really want to leave injuries on you and they have ways of hitting you without leaving marks. Reilly said that he had recognised that it was a very serious matter and that his state of mind had been one of sheer panic. He had not subsequently made any complaint of assault against the police officers - there was no point. When dragged down the path, he was taken to a police car and put into the back of it. While the police car was still parked, he saw, parked on the other side of the road, the Metro G.T.I. which they had stolen and in which the appellant had driven off. He said to the police something to the effect that they wouldn't get the driver for that vehicle or "Ha, ha, you'll not get the driver of that car". He found it hard to explain what feelings were running through his mind at that time, but he had made the comment to get back in their face. When interviewed by the police at the police station he had not wanted to get himself and Beaumont into trouble and so he had given the police officers a spiel. He never says nothing when arrested. When not being tape-recorded, however, he had told the officers that they had got the wrong

[6] Reilly said that he had been represented by Mr. Wardlaw at his second appearance. He had told him everything that had happened. Reilly had no objection to Mr. Wardlaw giving evidence as to what Reilly had told him. Mr. Wardlaw gave evidence to the effect that he had had a consultation with Reilly at Edinburgh Sheriff Court during the morning of 5 July. At that consultation Reilly had said that he and Beaumont had stolen a Metro G.T.A., while the appellant had a Metro G.T.I., also stolen. The appellant had followed the car driven by Beaumont who had eventually parked it next to the Ford Escort. The appellant drove off and Reilly and Beaumont had got into the Escort, with Beaumont driving. He gave a narrative of the car with the police officers coming and the driver rolling down the window and speaking. Eventually Beaumont panicked and drove off with the officer hanging on. Mr. Wardlaw's brother had handled the later stages of the case, including the trial, and so he himself could not speak to Reilly's final instructions to his counsel at the trial.

[7] In evidence Reilly accepted that he had not himself done anything after the trial to bring to the attention of the authorities the fact that the appellant had been wrongly convicted. He explained that he was only seventeen at the time and had been in the sheriff court only a couple of times. He did not know how courts operated. He did not know what steps to take, what to do.

[8] Constable Susan Miller gave evidence for the Crown. She spoke to Reilly being found in the bushes and being shouted at to stand up. There was no swearing or bad language that she could recall. She accepted that at the time, for all she knew, one of her colleagues, Constable Pennycook, was badly injured or dead. Neither she nor any of her colleagues assaulted Reilly. They pulled him up, handcuffed him and assisted him over the fence and on to the path. They then walked him to the car. By the time he was in the police car, he was quite calm. He said words to the effect "I don't think you'll get the driver for that one either" - there was some cheek in the way he said it. Otherwise he was silent. She said that she recognised that the allegation of the use of violence by police officers was very serious, but that she did not lie in court.

[9] We turn now to explain why we are unable to regard Reilly's evidence as being significant for present purposes.

[10] In the first place, we should explain that we do not draw any adverse inference from the fact that Reilly did not himself take any active steps to approach the authorities after the appellant's trial and that he had eventually to be contacted in Wales by those acting for the appellant. We accept that Reilly was still a very young man who, though having a certain familiarity with the criminal law and its agencies, might well not have known whom to contact on this particular matter, even supposing that he had genuine information to impart.

[11 At the trial Reilly, who did not give evidence, faced three charges. Charge 1, on which he appeared along with the appellant, was a charge of theft of the Ford Escort. Charges 3 and 4 were related charges under the Bail (Scotland) Act 1980. The jury convicted him unanimously of all three charges. In May 1996 Reilly had been convicted in summary proceedings in Edinburgh Sheriff Court of a charge of housebreaking with intent to steal and a charge of contravening the Bail Act. In addition, in cross-examination before us, Reilly admitted that he had a significant number of convictions for theft, attempted theft, attempting to defeat the ends of justice, reckless driving, driving without insurance and driving while disqualified. He accepted also that he had been dishonest in part: that was something which he had chosen to do in his life. He had not been involved with motor vehicles for several years now. He had settled down. His last appearance in court had been in December 2000. In the past he had shown no regard or respect for the rule of law. But he had been younger then and had had no responsibilities. On his own admission, therefore, Reilly is a person who, at the time of the events in 1996 at least, had no respect for the law. He also has a record involving dishonesty. We regard these as significant factors in assessing his evidence, if only because they suggest that he would have no compunction about giving dishonest evidence, should he choose to do so.

[12] The incident involving Constable Pennycook took place in the early hours of 27 June 1996. Shortly before noon on that day Reilly was interviewed by police officers and charged with having, while acting together with the appellant, stolen the Ford Escort between 26 and 27 June. Reilly replied that the appellant was not there when the car was stolen and that he himself was not there either. In his evidence before this court, however, as we have explained, Reilly freely acknowledged that, so far as his own involvement had been concerned, he had indeed been there when the car was stolen and that he had lied to the police. At a later stage in the interview, he told the police that he had not even been with the appellant on 26 June. Again, in his evidence to this court, he admitted that he had in fact been with the appellant on 26 June and into the early hours of 27 June and that on this point also he had lied to the police. Mr. Shead suggested in submission that, in effect, we should not attach too much importance to these matters, since Reilly had simply been lying to avoid making his own position worse and to avoid involving Beaumont. We recognise, of course, that persons in Reilly's position will frequently tell lies for these kinds of reasons. But we do not consider that these motives detract from the fact that Reilly is someone who, when involved with the criminal justice system, is quite prepared to tell lies when it suits his purpose. In particular, he is prepared to tell lies about the events of 26 and 27 June 1996. This confirms, and adds to, our general impression, based on his record of convictions, that Reilly would have no hesitation in giving false evidence to this court about these events to assist the appellant.

[13] Reilly's evidence and the way in which he gave it indicated that, in 1996 at least, he was very much involved with cars. In particular, he spoke quite definitely to a version of events in which the three young men had first stolen a Rover Metro G.T.I. and had then stolen a Rover Metro G.T.A. They had originally all been in the G.T.I., but, after they stole the second car, he and Beaumont had been in the G.T.A., while the appellant had been in the G.T.I. This appears to correspond to the account which he gave to Mr. Wardlaw. But in his affidavit dated 14 April 1998, Reilly gave a significantly different picture. He said

In the following paragraph Reilly said that "on the way back to the police vehicle I saw the GTI we had abandoned...." There are three related discrepancies. In his evidence to this court Reilly said that he himself had been in the G.T.A., whereas in the affidavit he says that he was in the G.T.I. More significantly, in his evidence Reilly said that he was in the G.T.A. along with Beaumont who had been driving. In his affidavit, by contrast, he says that he was in the G.T.I. along with the appellant and he repeats that in the later passage in his affidavit. In his evidence, Reilly paints a picture of Beaumont and him arriving in the Murrayfield area in the G.T.A. followed by the appellant in the G.T.I. and of the appellant then doing a wheelspin and driving away in the G.T.I. By contrast, in his affidavit, Reilly says that they drove to the Murrayfield area where they parked the vehicles. This is an essential element in that account, since in that version the appellant would himself have required to leave the G.T.I. and join Beaumont before the appellant drove off in the G.T.I.

[14] These discrepancies were not put to Reilly when he gave evidence. None the less they suggest that the account which Reilly gave in the witness box is not one upon which we can rely. He did not suggest that he could not recall the events of the evening in question. On the contrary, he was intent on giving a fairly detailed and graphic account of what he claimed had happened and, in particular, of the sequence of events involving the various cars. That being so, when we find that Reilly has previously given a significantly different version in an affidavit, all of which bore to be truth as he was to answer to God, this suggests that Reilly's evidence is false and not to be trusted.

[15] In evidence Reilly went out of his way to give an account of his discovery and detention by the police officers which included allegations of a serious assault by the police, involving them handcuffing his legs and bundling him over the fence, dragging him to the police car and punching and kicking him, in an attack motivated by their resentment at his involvement in the assault on their colleague. We are satisfied that this aspect of his evidence too was false. As he himself admitted, he had no apparent injuries at the time. As he also admitted, he made no complaint at the time. More significantly, perhaps, when he spoke to his solicitor, Mr. Wardlaw, on 5 July 1996, he claimed to have been hit with a truncheon in the bushes and to have been punched and kicked in the cells at the police station. That is a very different account. Significantly, also, in his affidavit Reilly makes no mention of any assault by the police. We should add that we were impressed by the evidence of Constable Miller who denied that the police officers had assaulted Reilly.

[16] Finally, the suggestion that he had been assaulted and was in a state of panic because he thought that he was being detained in connexion with a serious assault on a police officer is belied by the evidence relating to his remark when in the back of the police car. As Constable Miller said, it was a cheeky remark and Reilly indeed accepted as much, but suggested that it had been his way of getting back at the police officers. In our view, if he had genuinely been in a state of panic because of the immediately preceding events, he simply would not have made a remark of that kind. On the contrary, such a remark is indicative of someone who is by no means overwhelmed by his situation and feels no real fear over his predicament.

[17] In these circumstances, and taking the various factors into account, we cannot regard Reilly's evidence as being capable of being regarded by a reasonable jury as credible, far less as reliable. It is not evidence of such cogency that we can reasonably regard the verdict of the jury, reached in ignorance of its existence, as being a miscarriage of justice.

[18] In reaching that conclusion we have had regard, of course, to the nature of the evidence at the trial. As Mr. Shead admitted, and indeed as Reilly himself admitted, both Constable Pennycook and Constable Ramsay had been in a position to see clearly who was driving the car at the time of the assault on Constable Pennycook. They identified the appellant. Reilly very properly conceded in evidence that, if Beaumont was indeed the driver - as he claimed - both Constable Pennycook and Constable Ramsay must have been lying in order to secure the appellant's conviction. But it is really counter-intuitive to suggest that they would have lied about the identity of the driver in a case like this where, one might have thought, Constable Pennycook in particular would have had every reason to wish to ensure that the true perpetrator of the assault was brought to justice. Yet, on Reilly's version, the police officers must have lied about this vital matter from an early stage.

[19] Mr. Shead also sought to persuade us that Reilly's evidence cast doubt on the evidence of an eye witness, Mr. Winton, who lived in a first-floor flat overlooking the street where the Ford Escort was parked. Mr. Winton said that he had been wakened by sounds from the street and had looked out of the window, where he saw a car taking off at a great rate of knots, wheels spinning away, in the direction of Roseburn Park. About five minutes later he saw two men acting suspiciously and telephoned the police. He said that one of the men was dressed in a very distinctive dark and light-coloured sweater, while the other was dressed in a fairly heavy black leather jacket. He identified Label Production No. 4 as being like the jacket in question. He spoke to seeing the two men getting into the car and working together inside the car. Eventually, the car was driven off and Mr. Winton thought that the man in the leather jacket had been the driver. Mr. Winton also identified the jersey, Label Production No. 3, as being similar to the jersey worn by the other man who at one point had been standing beside the car, looking around and smoking a cigarette.

[20] Mr. Shead said that Reilly's evidence and Mr. Winton's evidence concurred in showing that Reilly had been one of the two men involved in stealing the Ford Escort car. The other man, according to Mr. Winton, had smoked a cigarette. According to Reilly, at that period Beaumont smoked cigarettes. Mr. Shead accepted that he had not asked Reilly whether the appellant smoked cigarettes, but suggested that the important point was that the picture of the other man as someone who smoked was consistent with that other man having been Beaumont. Reilly's evidence showed that Beaumont had been wearing a distinctive striped jersey on the night in question and, although Mr. Winton had identified Label Production No. 3, the appellant's jersey, as being similar to the one which the other man had been wearing, in the light of Reilly's evidence it was very possible that he had been mistaken on this matter, as he had indeed been mistaken in his evidence as to the colour of the car. The Advocate Depute pointed out, however, that in his evidence the appellant had said that on the evening in question Beaumont had been wearing a jersey like his, only with smaller stripes, dark blue with pale blue. The possibility that Mr. Winton had seen Beaumont dressed in that jersey had accordingly been before the jury. In our view, Reilly's evidence does not add anything of any significance on this point, which was explored at the original trial.

[21] Mr. Shead also submitted that we required to look at what he described as the broader picture. The appellant's conviction had depended on the jury accepting a rather implausible theory that, when he was apprehended by the police, he was walking north in Roseburn Street, in the general direction of the locus. He still had the jersey and he was not out of breath. Yet, in order to reach that point and to be walking back within a few minutes, he would have required to run. Obviously, these are the kinds of criticisms of the Crown case which the defence would very properly place before the jury at the trial. The jury must have rejected them. As we said at the outset, there is, of course, no doubt, that, if it had been capable of being regarded as credible, Reilly's evidence would have been of great significance since it would have struck at the very heart of the Crown case. In that sense, it would have been relevant to the very kind of consideration of the plausibility of the Crown case which Mr. Shead highlighted. But, for the reasons that we have given, we are unable to hold that it is capable of being regarded as credible by a reasonable jury. That being so, it has no role to play and simply falls to be disregarded.

[22] For these reasons, as we indicated after hearing the evidence and counsel's submissions on it, we reject the ground of appeal based on Reilly's evidence. We went on, however, to hear further submissions from counsel relating to what was said to be a breach of the appellant's right, under Article 6 of the European Convention of Human Rights and Fundamental Freedoms, to a hearing within a reasonable time due to delay in the appeal process. In the course of those submissions, we gave Mr. Shead leave to lodge a devolution issue relating to that matter and we continued the appeal for intimation of that issue to the Advocate General, the appeal being scheduled to call again By Order on 25 May 2001.