Crown wins appeal against acquittals as appeal court clarifies ‘Howden’ principle

The High Court of Justiciary Appeal Court quashed the acquittals of Mark Chung and Benjamin Kinnaird after ruling that the judge “fell into error” in concluding that the “Howden” principle could not be applied where the basis of proof of the foundational charge was a circumstantial one.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, explained that where a jury may be satisfied beyond reasonable doubt that the circumstances of two, or more, offences libelled together are such that they must have been committed by the same person, they may rely upon proof – in the sense of corroborated evidence – of identification on one charge to support conviction on the other charge, even though there may be a lack of evidence relating to identification on that other charge.

As stated in Gillan v HMA 2002 SLT 551, the doctrine set out in Howden v HMA 1994 SCCR 19 operates where there has been “full legal proof of identification” on one charge, but a lack of identification in another or others.

The operation of the doctrine means, as observed in Gillan, that: “If the evidence shows that two crimes were committed by the same person, then the evidence that the first was committed by the accused entitles the jury to convict him of the second.”

The court in Gillan added that if the evidence as to particular features of the separate offences is such as would entitle a jury to reach the conclusion that the offences were committed by the same person, these factors provide “circumstantial evidence to the effect that the perpetrator on one charge was the same person who is identified as having been the perpetrator on the other”.

Delivering the opinion of the court, the Lord Justice Clerk, Lady Dorrian said: “There are thus two elements to the doctrine: proof sufficient to establish the accused as the perpetrator of one of a series of offences; and proof of common circumstances between that offence and others in the series, of a kind which bear on the question of identity of the perpetrator of those other offences in such a way as to enable the conclusion to be drawn that the same individual committed both, or all of the offences.

“The starting point for the operation of the doctrine must thus be legal proof of identification of the appellant as the perpetrator of at least one of the offences. That proof may involve eye witness identification; it may not. Evidence capable of establishing that an accused was the perpetrator of an offence may equally come from circumstantial evidence.”

As can be seen from Martin v HMA 2016 SCCR 276, the “full legal proof of identification” may come from circumstantial evidence; it may come from forensic evidence alone.

“Therefore,” Lady Dorrian continued, “in so far as the trial judge in the present case appears to have concluded that Howden could not be applied where the basis of proof of the foundational charge was a circumstantial one, he fell into error.”

Turning to the second element of the doctrine, namely whether the circumstantial evidence relating to the similarities between the charges were such as would entitle the jury to hold that both crimes were committed by the same person, as the court observed in Gillan, the essential question was “not simply whether the two crimes libelled are similar in type or in the manner and circumstances of their being committed. The essential question was whether these and any other similarities go to the identification of the accused as the perpetrator of both.”

In the present case it was accepted on behalf of the respondents that there were “sufficient similarities” in the three charges to permit the operation of the Howden doctrine, were it possible to apply it.

The only argument was that the doctrine could not apply in the absence of eye witness identification in respect of the foundational charge.

The Lord Justice Clerk said: “It is clear to us that the factors relied upon by the Crown provide ample similarities of the kind necessary for the application of the doctrine. In the circumstances the appeal will be granted and the acquittal of the respondents on charges 1 and 2 will be quashed.”