Man found guilty of gangland ‘execution’ loses legal bid to amend grounds of appeal

Lord Carloway
Lord Carloway

A man found guilty of a Glasgow gangland murder has had an application to amend the grounds of his appeal against his conviction refused.

David Scott, who was sentenced to life imprisonment with a punishment part of 22 years after being found guilty of the “execution” of Euan Johnston in a drive-by shooting, was seeking to introduce additional grounds alleging “defective representation” as well as challenges to evidence linking him with the Audi Q5 which was involved in the shooting.

But the High Court of Justiciary Appeal Court rejected the application after ruling that the issues raised were “without practical merit”, having noted that the court had previously refused his request for further time to amend his note of appeal because he was apparently seeking a review of the whole trial and preliminary procedure.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the applicant was found guilty following a trial at the High Court in Glasgow in May 2018 of the murder of Euan Johnston on 15 November 2016, at the junction of Shields Road and Scotland Street.

The evidence at trial, at which the applicant was represented by experienced senior and junior counsel, along with agents, was that the shooting had occurred after the deceased had left a restaurant and was driving his Audi RS4. 

The restaurant had been kept under surveillance by certain individuals, one of whom was identified at trial as wearing a Nike Windrunner zip top, who had been in an Audi Q5. 

After the deceased had left the restaurant, his car was followed by the Q5, and as both cars came to be parallel at a junction, a person in the Q5 shot the deceased in the head.

The Q5 was later found in a burnt-out condition, and the applicant was linked to the vehicle by a Nike Windrunner top, which was also found in a burnt-out condition in the car and which, according to the evidence at the trial, had the applicant’s DNA on it.

Having been granted two extensions of time to lodge a note of appeal, a third application was rejected by a procedural judge after it became clear that the applicant’s intention was to review of the whole trial and the earlier procedure in the hope of obtaining material which might found a ground for a successful appeal. 

After lodging his note of appeal, leave to appeal was refused at the first sift, and no application was made to the second sift, but the applicant instead applied to introduce additional grounds of appeal.

The first additional found was that there was defective representation relative to references made by witnesses at the trial to the applicant being in prison in 2016 and thus to his “bad character”. 

These came during cross-examination by the applicant’s counsel of the applicant’s mother and of the mother of his child, but no motion to desert the trial was made, and the applicant argued that no counsel, acting reasonably, would have asked the questions posed or would then have failed to make a motion to desert.

The second additional ground was that his counsel failed to cross-examine key witnesses “effectively” and to present evidence which undermined the Crown case and was supportive of the applicant’s defence, including that of an alibi, which was to the effect that the applicant had been at his parents’ home on the night in question.

Other additional grounds related to “disclosed evidence” which suggested that there was a “lack of opportunity” for the applicant to be involved in he offence, given that he had no connection with the deceased or to the north of Glasgow, from where the Audi Q5 had travelled.

Further complaints related to the conduct of his representatives and their alleged failure to properly prepare his defence and provide objective advice to him, which was said to be in breach of the Code of Practice for Criminal Legal Assistance.

However, the appeal judges ruled that there was “no substantial merit” in the proposed grounds of appeal concerning alleged defective representation.

Delivering the opinion of the court, the Lord Justice General said: “Especially when an appellant has been represented by a highly experienced, specialist Queen’s Counsel, this is a high barrier to surmount. It is nowhere near being crossed where counsel has simply asked the applicant’s own mother questions about when the applicant had last lived with her and when had he first left home. 

“Even if it were established that these questions could have been predicted to elicit responses about the applicant having been in prison, that is a far cry from demonstrating that the applicant’s defence was not presented to the court. The fact that the mother of the applicant’s child mentioned not taking the child to prison falls into a similar category, except that it is not suggested that the response could have been predicted.

“There was no substantial basis upon which counsel could have advanced a motion for the court to desert the diet, based on what the witnesses had volunteered in cross examination. Such a motion could only have been made if it could have been said that the remarks had so compromised the prospects of a fair trial that desertion became an imperative if the potential for a miscarriage of justice were to be avoided. 

“In the context of this murder trial, in which the evidence against the applicant consisted primarily of the scientific link between the applicant and the Nike hoodie, it would have been almost unstateable to submit that the oblique references to prison could have compromised the fairness of the trial.”

He added: “The second ground (proposed ground 7) returns to the alleged failure to elicit testimony from the applicant’s mother, and supported by the telephony data and analysis, about the alibi; viz. that the applicant was at his parents’ home at the material time. There are several problems with this. 

“No positive line of inquiry was instructed. In particular, no alibi, was ultimately proffered, although that matter had been specifically discussed with the applicant in advance of the Preliminary Hearing. The applicant had considered advancing an alibi but counsel had advised that it would require to be spoken to in evidence by the applicant and/or any alibi witnesses. 

“The inherent dangers of advancing an alibi having been raised, the applicant opted not to lodge one in favour of the purely reactive defence. This instruction was repeated at various junctures during the trial, at which the applicant did not give evidence.”

A further problem with the applicant’s case was the contention that he had no opportunity to be involved in the murder. 

Lord Carloway continued: “An assertion is made that the applicant could not, if he had been using the phone at his parent’s home at 22.19, have been in the Audi Q5 on the Kingston Bridge at 23.27. This is all predicated on the truth of the alibi, which was deliberately not run by the applicant. 

“It cannot be re-raised now because, on reflection, it might have succeeded where the applicant ultimately failed. There is in any event no alibi which would have prevented the applicant being in the Q5 on the Kingston Bridge at 23.27 and/or at the scene of the shooting 15 minutes later.”

The court also rejected the criticism made of the applicant’s defence team.

The Lord President concluded: “Gauging the level of preparation in a responsible manner is a skill based on an ability to predict the outcome of executed tactics and strategies which is gained by experience and learning. 

“In this case, the applicant faced a Crown case based on a simple contention that his (and his girlfriend’s) DNA was found on a Nike hoodie which was discovered in the burnt out remains of the Audi Q5. The Q5 was used in the assassination of the deceased. 

“That is what the applicant was up against. It was a matter for him, as advised by his counsel and agents, to instruct the best way of meeting it.

“In these circumstances, there was no breach of the Code of Practice for Criminal Legal Assistance… The criticisms of the applicant in relation to the alleged failures of his defence team are without practical merit and hence substance.”

© Scottish Legal News Ltd 2020

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