HMA v John Gilmour 2019

The Crown has appealed against a Judge’s decision successfully that an accused who had previously pled guilty to an assault regarding an incident would not be later tried for the man’s murder. This High Court in Edinburgh corrected the judge who stated the Crown could no longer prosecute for murder having accepted a guilty plea to assault, even though the man died years later. However, the Appeal Court ruled the law in Scotland allowed for this to take place and double jeopardy legislation accommodated this.

The appellant argued that there should be a bar on a prosecution for murder and lodged a Minute expressing it was not competent to serve an indictment for murder. However, the Minute accepted the appellant could be charged with culpable homicide. The appellant has already served five years and four months imprisonment for the assault charge. The Crown appealed the judge’s decision on the basis that he had erred to the High Court. The three appeal judges agreed and confirmed that the murder indictment was competent. In concluding the appeal the Lady Dorrian confirmed: “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.” Therefore, the appeal was refused and the appellant prosecuted for murder.