The recent appeal decision in MacKinnon v HM Advocate  HCJAC 6 serves as a reminder that the statutory ground of appeal contained in Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 will succeed only in exceptional cases.
Delivering the opinion of the court, Lady Dorrian re-states the matters essential to the consideration of such an appeal.
- The test set by section 106(3)(b) is both an objective one and a high one. An appeal is likely to succeed in relatively rare circumstances.
- The court will require to consider the evidence at trial as a whole. As it was put in McDonald v Her Majesty’s Advocate 2010 SCCR 619 by Lord Carloway:
“The question for the court is whether, looking at the totality of the evidence, it is satisfied that a miscarriage of justice has occurred because no reasonable jury could have held the case proved beyond reasonable doubt. In answering that question, the evidence … should not be looked at in isolation but should be taken along with, and in the context of, the other testimony at the trial … In dealing with appeals under section 106(3)(b), the court is not concerned with the legal sufficiency of the evidence. It requires to carry out an assessment of the reasonableness of the verdict ‘with the benefit of its collective knowledge and experience’. As part of that assessment it is no doubt correct in broad terms to say, as was submitted, that the evidence must reach a “base line” of quality.”
- Finally, the appeal will only succeed if it can be said that there was “no cogent framework of evidence that the jury were entitled to accept as credible and reliable and which would have entitled them to return the verdict which they did.”