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 STEVEN ALEXANDER ROBERT JOHNSTON and BILLY ALLISON

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PostSubject: STEVEN ALEXANDER ROBERT JOHNSTON and BILLY ALLISON   Thu Sep 04, 2008 4:44 pm

Police withheld evidence of time and date of death.

http://www.scotcourts.gov.uk/opinions/2006hcjac30.html

APPEAL COURT, HIGH COURT OF JUSTICIARY


Lord Justice Clerk

Lord Osborne

Lord Johnston



[2006] HCJAC 30
Appeal Nos: XC463/03; XC462/03



OPINION OF THE COURT



delivered by THE LORD JUSTICE CLERK



in



THE REFERRALS by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION



in the cases of



STEVEN ALEXANDER ROBERT JOHNSTON

First appellant;



and



BILLY ALLISON

Second appellant;



against



HER MAJESTY'S ADVOCATE

Respondent:

_______


For the first appellant: Kerrigan QC, Gilbride;

For the second appellant; Burns QC, Shead;

For the Crown: Murphy QC AD, Miss Reville; Crown Agent

17 March 2006


I Introduction

[1] The appellants were tried at Edinburgh High Court in March 1996 on the following charge:
"Between 3 and 9 November 1995, both dates inclusive, at 38 Milton

Green, Dunfermline you Billy Allison and Steven Alexander Robert Johnston did assault Andrew Forsyth, residing there, punch and kick him repeatedly on the head and body, strike him repeatedly on the head and body with pieces of wood or similar objects, stab him on the body with a pair of scissors, compress his throat with your hands and did murder him."



In the course of the trial, and before defence evidence was led, the advocate depute amended the charge by deleting "between 3 and 9 November 1995, both dates inclusive" and substituting "on the 3 November 1995" and by deleting the words "stab him on the body with a pair of scissors." The amendment to the date libelled was critical. On 19 March 1996 both appellants were convicted by a majority verdict.

[2] The police enquiry in this case was carried out by officers of Fife Constabulary. Within about three days after the finding of Andrew Forsyth's body, D Insp Richard Munro became the senior investigating officer in charge of the enquiry. He and DS John Nessel were the reporting officers. In 2004 Mr Munro, by then D Supt, resigned from the force in advance of disciplinary proceedings unconnected with this case. It appears that DS Nessel is no longer serving with Fife Constabulary. His present whereabouts were not established at the hearing of evidence before us. The enquiry was directed from an incident room of which the officer in charge was D Insp Derek McEwan. He too has resigned from the force and now lives in Spain.

[3] The Scottish Criminal Cases Review Commission (the Commission) has referred the cases of both appellants. It considers that, by reason of the suppression of certain evidence by the police before the trial and in the light of new evidence obtained since then, there may have been a miscarriage of justice (cf Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 194C). The appellants have taken the opportunity to appeal in these proceedings (ibid, s 194B(1); Campbell v HM Adv, 2004 SCCR 220, at para [49]) on similar grounds.


Read the rest of the decision at: http://www.scotcourts.gov.uk/opinions/2006hcjac30.html
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