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Miscarriage of Justice Appeal Refused

HMA v Scott Fowler 2019

Mr Fowler has had his appeal against conviction refused after arguing that the advocate deputes jury speech and the trial judge’s misdirection’s resulted in a “miscarriage of justice.” The Appeal Court at the High Court in Edinburgh did not agree with the appellant’s argument and refused the appeal. The appellant was found guilty after trial of armed robbery. The appellant along with his co-accused assaulted a man in a Edinburgh flat while pointing a gun at him and stole over £100. The appellant who was also charged with a number of firearm offences was sentenced to 10 years imprisonment.

Two particles of firearms residue were found in the appellant’s jacket after police enquires. A forensic expert took the stand and stated it was not safe to come to any conclusion when one particle was found; as it could have got there in a number of ways. In their jury speech the Crown stated: “What to make of that is a matter for you … But the Crown brings you that together with all the other strands of evidence which I have … already outlined … The forensic findings … in relation to the clothing fits will all these other strands of evidence and confirms … that the identification of the culprits here is indeed the two accused”. The appellant therefore argued that this was a miscarriage of justice because the trial judge did not direct the jury properly as to the forensic evidence after the remarks made in the Crown speech. The appellant stated that the jury were asked to engage in “speculation”.

The Crown, however, stated that this was evidence that was available for the crown to use and was one element of their circumstantial case. The Crown further stated that what the depute had said about the evidence was correct and they had not mislead the jury in any way. The High Court agreed and the appeal was refused. The Lord Justice General said: “The remarks made by the advocate depute were entirely appropriate in the context of the Crown case. It was for the jury to decide what they made of the finding of one or two particles of firearms residue on the clothing of one or other, or both, of the two accused in the context of the other evidence in the case…. “The trial judge was correct in directing the jury that, whatever may be the position from a scientific viewpoint, the scientist was not considering the finding of residue in the context of the other potentially incriminating evidence.” The appeal was therefore refused and Mr Folwer’s sentence remains.

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