High Court rejects appeal by criminal gang member after challenge to evidence of police informant

About this case:

• Citation:
  [2023] HCJAC 6
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant Christopher Hughes was charged with the attempted murder and murder of Martin Kok and a contravention of section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010. On appeal he argued that the jury had been inadequately directed on prior statements made by a police covert human intelligence source (CHIS) and how they differed from the evidence he had given at trial.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Matthews and Lord Boyd of Duncansby. Findlay KC and Young, advocate, appeared for the appellant and Ewing KC for the Crown.

No special category

The appellant was said to have carried out activities for a serious crime group between 2013 and 2020 including the importation and supply of cocaine, possession of firearms, the use of false names and addresses to hire vehicles and lease properties, and money laundering. He had been with the deceased at the time of his assassination, and during a previous attempt to shoot him.

The Crown case was largely circumstantial, but evidence was led from an incriminee who had worked for the crime group but also as a CHIS after being approached by the police in July 2016. The trial judge directed the jury that if they did not find the incriminee to be credible and reliable then they had to acquit on both charges, although that was potentially debatable in relation to the first charge. The incriminee was cross-examined by the defence over several days in an effort to demonstrate that he was lying, and the appellant was nothing more than a patsy for a crime that he had committed.

Counsel for the appellant submitted that the trial judge had failed to adequately direct the jury on how to treat the prior statements the incriminee had made to the police in interviews under caution. It was noted that he acknowledged that he had lied in a police interview in January 2018 and there were some differences between his evidence at trial and what he had told the police in interview. The complex nature of the case meant that a direction to the jury about the use of his evidence was necessary.

For the Crown it was submitted that the jury could not be in doubt that the incriminee’s credibility and reliability were under attack, and there was no need to give directions on matters which were obvious. The fact that the incriminee was an informant and spoke to the police in that capacity did not put his prior statements into any special category.

Plainly set out

Lord Matthews, delivering the opinion of the court, began: “In many respects the submissions for the appellant seemed to desiderate a direction not so much on prior statements but about the general character of the incriminee… Such a direction would have been akin to a cum nota warning which the courts were accustomed to giving before the case of Docherty v HM Advocate (1987). It was not, however, the function of the trial judge to give the jury any special directions as to how they should approach [the incriminee’s], evidence, that matter having been placed fairly and squarely before then in the speeches by the Crown and defence.”

He continued: “The jury were given standard directions about credibility and reliability and there was no need for the judge to give further guidance on these matters. The defence challenges to [the incriminee’s] credibility and reliability were plainly and comprehensively set out in counsel’s address to the jury, as were what was said to be inconsistencies between his prior statements and his evidence.”

On the relevance of the incriminee’s status as a CHIS, Lord Matthews said: “There is no merit in the suggestion that statements of a police informant, even one who is somehow contracted to tell the truth, are in a different category from other statements when it comes to assessing whether they are consistent or inconsistent with evidence. It does not matter whether such statements are given on oath, during the course of formal interviews or in the course of conversation. The same rules apply.”

He went on to say: “The nature of the attack on [the incriminee] was plain. The jury did not require to be given any directions beyond those they received about their function in assessing credibility and reliability. There is nothing exceptional in this case which takes it out of the generality.”

Lord Matthews concluded: “While [the incriminee’s] evidence in some respects could be said to have underplayed his status as a criminal, there is no prior inconsistency in what he said his activities actually were. A direction about prior inconsistency in dealing with those features of his evidence would have been confusing and misplaced. In any event, the jury were well able to make their judgment on that for themselves without any additional assistance from the bench.”

The court therefore refused the appeal.