Lord Advocate wins appeal to prosecute man for murder despite accepting his guilty plea to assault

The judge had held that the Crown had “renounced” its right to prosecute having accepted the plea, but the Appeal Court of the High Court of Justiciary ruled that Scottish double jeopardy legislation allowed subsequent prosecution for murder following intervening death in any case in which the charge in the original case was one “involving the physical injury of another person”, and that in any event acceptance of a plea “cannot be construed as the renunciation of a right to prosecute” should the victim die.

‘Aggravated assault’

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull, heard that the charge of murder alleged that on 11 June 2012 the respondent Jason Gilmour assaulted Scott Hepburn by repeatedly punching him on the head causing him to fall to the ground, and then kicking, stamping and jumping on his head, whereby he was so severely injured that he died almost five years later on 17 April 2017.

In 2012 the respondent had appeared on petition charging him with attempted murder of the same victim, but his offer to plead to an aggravated assault was was accepted by the Crown, and the respondent was sentenced to a custodial term of five years and four months, discounted from one of eight years because of the plea. 

Following Mr Hepburn’s death the Crown served an indictment for murder, but a preliminary issue minute was lodged contending that the Lord Advocate was “personally barred” from proceeding against the respondent on a charge of murder, although a charge of culpable homicide would remain open. 

Having heard argument the preliminary hearing judge upheld the preliminary issue minute. 

The judge considered that section 11 of the Double Jeopardy (Scotland) Act 2011, when read with section 1(3), made it competent for the Crown to bring a murder charge where a plea of guilty to the “original offence” had been accepted, but the legislation did not encroach upon the issue of personal bar. 

Notwithstanding that under statute it would be competent for the Lord Advocate to bring such a prosecution, he might nevertheless be prevented from doing so where he has formally and publicly renounced the right to do so.

Having accepted the plea, the Crown acknowledged that the respondent did not perpetrate a murderous assault upon the victim, and thus “relinquished” the right to prosecute the respondent for murder in the event that the victim died from his injuries, meaning the Lord Advocate was now restricted to a charge of culpable homicide in respect of the death of the complainer.

‘Renunciation’

But the Crown appealed against the decision, arguing that the judge “erred in law”.

The central question in the appeal is whether the Crown’s acceptance of a plea to aggravated assault amounted, in the circumstances, to an “unequivocal and unqualified renunciation” of the right to prosecute the respondent for murder, notwithstanding that it would be competent to do so in terms of the Double Jeopardy (Scotland) Act 2011.

The Lord Advocate submitted that the fact that the Crown would have been unable to proceed on a charge of attempted murder in a second indictment had no effect on the possibility of proceeding on a charge of murder, since murder and attempted murder were different crimes.

The death of the complainer was a new element creating a new crime. 

At common law, the previous trial of the accused for assault would not found a plea of res judicata, whether the accused was convicted or acquitted. 

Attempted murder was an assault aggravated by a particular mens rea, distinct from the crime of murder, in respect of which prosecution still lay open to the appellant.

In any event, it was argued that while the acceptance of the plea would have barred the Crown from indicting subsequently for attempted murder, it not amount to and “unequivocal and unqualified renunciation of the right to prosecute a charge of murder” following the death of the complainer.

‘Murder prosecution competent’

Allowing the appeal, the judges ruled that the prosecution for murder was “competent”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The Double Jeopardy (Scotland) Act 2011 created a new regime for the consideration of what had formerly been the common law plea of res judicata. The former rule had focused on whether the essence of the crimes in each instance were in a true sense the same, depending on proof of the same facts: the prosecutor could not avoid the plea merely by describing the same facts in a different manner. 

“Under the common law, even although a prosecution for assault had previously taken place, the subsequent death of the victim changed the circumstances: the facts were now different, and a prosecution for murder could take place. 

“Even if it were the case that at common law the issue of whether a murder trial could follow a prior prosecution for attempted murder was in doubt (as to which, see below), the matter is now put beyond doubt by the terms of section 11 of the Act, which permits a subsequent prosecution for murder following intervening death in any case in which the charge in the original case was one ‘involving the physical injury of another person’, subject to an interests of justice test where there had been an acquittal on that charge. 

“The clear intention of the Act is that even where someone was charged, and acquitted, of attempted murder, a subsequent prosecution for murder should remain possible. It is important to bear this in mind when considering the respondent’s argument, which, whilst based on an alleged renunciation of the right to prosecute, nevertheless hinges on questions relevant to the former common law test, namely whether the original and subsequent offences are in essence the same.”

Lady Dorrian continued: “The only basis upon which it is maintained that there is nevertheless a bar to prosecuting the respondent for murder is the argument that the plea tendered and accepted by the Crown had the effect of a renunciation of the right to bring a prosecution for murder in the event that the victim of the assault subsequently died. 

“The effect of the plea was to abandon any proceeding for attempted murder; and since murder and attempted murder have the same mens rea and the same actus reus, the acceptance of the plea operated as a renunciation, not only of the right to prosecute for attempted murder, but also as a renunciation of the right to prosecute for murder should the victim subsequently die.

“We do not consider it to be the case that, merely because the mens rea of attempted murder and murder are the same, the two crimes must be considered so equivalent that an inability to prosecute the former must imply an inability to prosecute the latter in the event of death intervening. 

“It may indeed be said that the only difference between murder and attempted murder is that in the latter the death has not been brought off, but that is no small matter. We are satisfied that the effect of death is to create an offence different from the one which featured in the original charge and to that extent we accept the Lord Advocate’s submissions.”

The judges did not agree with the Lord Advocate’s assertion that attempted murder was simply an aggravated assault.

“Nevertheless,” the court concluded, “for the reasons we have given we are satisfied that the crimes of murder and attempted murder are sufficiently distinct, so that an act which may operate as a renunciation of the right to prosecute the latter does not necessarily have the same consequence in respect of the former, should death subsequently intervene and change the facts of the case. 

“In our opinion a renunciation of the right to prosecute a charge of murder can be established only on the clearest possible, unequivocal terms, and cannot readily be created by inference or implication, which is the essential basis upon which the respondent’s argument proceeds.

“Furthermore, the issue of whether the Lord Advocate has renounced the right to prosecute any particular case must be seen in the context of the law which would otherwise apply. Whatever may have been the position prior to the introduction of the 2011 Act…that Act makes it abundantly clear that it should now be possible to prosecute for murder even where there has been a prior prosecution for attempted murder. 

“It is against that background that the Lord Advocate’s acceptance of the plea must be analysed. For this reason also we consider that the acceptance of the plea cannot be construed as the renunciation of a right to prosecute should the victim die.”

Following a murder trial earlier this year, the respondent was found guilty of culpable homicide and sentenced to four-and-a-half years’ imprisonment.