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Miscarriage of Justice Appeal Refused

HMA V James Hyslop

Mr Hyslop who criticised the Sheriff for allowing late CCTV evidence has had his appeal against conviction refused by the appeal court. He was found guilty of attacking a man with a meat cleaver and therefore of assaulting the man to his severe injury. Mr Hyslop was also found guilty of attempting to pervert the course of justice and sentenced to 3 years and 4 months imprisonment.

The existence of the CCTV in this case only became apparent during the trial and this was allowed to be played by the Sheriff, a number of days in to the trial without the prior knowledge of the accused. The appellant and his defence team argued the CCTV did not meet the statutory test for admission and that the crown had failed in its disclosure duties and therefore this should not have been admitted as evidence. The appellants defence in this case was mistaken identity and he was adamant he would not be on any CCTV. During the trial when a police officer was giving her evidence she stated she had watched the CCTV which had transpired to never have been forwarded to the Crown. There was no explanation for this and it may have been overlooked it was explained.

The sheriff refused the appellant’s motion to desert the trial and allowed the CCTV to be played in court. The appellant had argued that this decision by the sheriff meant he had erred and his conviction should be overturned as this was a miscarriage of justice. The CCTV could have been found and lodged therefore the position was unfair to the accused. The Crown submitted they had not been aware of the CCTV therefore there was no failure on their part.

In concluding the appeal Lord Carloway stated: “Given its eventual materiality, it was undoubtedly in the interests of justice that the recording should have been played. Any potential unfairness could have been met by recalling any witness who had already testified and whose evidence differed from that which was subsequently revealed by the recording. No motion to recall any such witness was made”.

The court is not satisfied that the sheriff erred in her decision… In any event, it is impossible to see how a miscarriage of justice can be said to have occurred. The content of the recording had already been described, without objection and apparently accurately, in the course of the trial. In particular, from the appellant’s point of view, in relation to the prison phone call, there had been evidence that there was CCTV at the locus and that the attackers were wearing hoods.” The appeal court also confirmed that the CCTV was also outlined on the summary of evidence and should have been noticed by both crown and defence.

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