HMA v David Glass

Mr Glass who was convicted of four charges of lewd, indecent and libidinous practices in December of 2017 after a trial at Dundee Sheriff Court had his appeal against conviction rejected. However he was successful in relation to reducing the custodial sentence. Mr Glass was sentenced to an extended sentence of 6 years with a 5 year custodial element.

This was after his abuse of three boys. However, in the trial evidence was given by a witness who could not remember his statement due to memory loss. The appellant argued this should not have been admitted as evidence.

The appeal judges agreed that that hearsay evidence should not have been allowed. However, the appeal against conviction was rejected as the appeal judges concluded there was no miscarriage of justice here. The witness in question was a brother of a complainer who has suffered memory loss in a recent road traffic accident and although had made a good recovery has a brain injury.

Before the Trial diet, the crown had lodged a notice under section 259 of 1995 Act seeking to reduce the evidence of a statement made to a police officer on 20 February 2014 by the brother. This was opposed as the defence argued that the witness could give evidence, even although he may not be able to remember certain events. The Trial Sheriff granted the application.

The appeal court ruled that the witness did not suffer from a mental condition and that the statement should have been put to the witness. Therefore, the Trial Sheriff had erred in this respect. In concluding the appeal, the Lord Justice General said: “The statement ought not to have been admitted as an exception to the prohibition against hearsay. The next question is whether, as a result, a miscarriage of justice has occurred.

The answer to that question is in the negative.” However, in terms of the sentence it was agreed this was excessive, giving weight to the age of the offences, and therefore this custodial sentence was reduced to three years.