Five Judges to consider miscarriage claim

a miscarriage of justice.

John McLay, 18, alleges that the man who stood trial with him and was

acquitted has now confessed to the repeated stabbing of 27-year-old

Stephen McDermott outside his home in Nitshill, Glasgow, in February,

1992.

However, as the law stands, the fresh evidence would be ruled

inadmissible as hearsay and three Judges in the Court of Criminal Appeal

have decided that an apparent anomaly revealed in this case should be

looked at by a larger court.

McLay, of Riverford Road, Newlands, Glasgow, and co-accused Stephen

Harkins, of Hagg Road, Johnstone, Renfewshire, both stood trial at the

High Court in Glasgow for the murder of Mr McDermott. They were also

accused of a knife attack a short distance away minutes earlier.

The jury convicted McLay of the murder by a majority verdict and found

the charge against Harkins not proven, although he was convicted of the

knife attack in the other incident.

After Harkins was sentenced to six months and McLay to life by Lord

Prosser, violence erupted in the dock, with McLay screaming abuse and

punching his co-accused.

Mr Paul McBride, counsel for McLay, told the appeal court fresh

evidence had emerged to support his client's claim.

Six witnesses had given sworn statements. Two stated that, while in a

prison van on his way to court before the trial, Harkins had confessed

to the killing. Three spoke to confessions allegedly made by Harkins

after the trial.

A sixth witness claimed he had overheard a conversation in which

Harkins explained that the jacket he had been wearing at the time of the

stabbing was later found on McLay.

Mr McBride urged the appeal court to hear the new evidence to see

whether it was reliable and, if so, whether it would have been bound or

at least likely to have had an effect on the crucial question for the

jury -- was the murder committed by McLay or Harkins?

In his report to the appeal court, Lord Prosser stated that, at the

trial, there had been a substantial body of evidence tending to point

towards Harkins.

The Crown argued that the new evidence should not be heard. Harkins

had refused to make any statement to the Crown about his alleged

confessions, the new evidence McLay was seeking to introduce was hearsay

and therefore inadmissible at any retrial.

It would have been competent to lead the evidence at the original

trial had it been available because, at that stage, Harkins was a

co-accused being incriminated by McLay. However, now that he had been

acquitted, evidence of what he was supposed to have admitted would not

be competent at any retrial, making a new trial pointless.

Lord Ross, the Lord Justice Clerk, said this was yet another case of

an accused trying to persuade the appeal court to hear additional

evidence on the basis that since the jury's verdict had been reached in

ignorance of it, there had been a miscarriage of justice.

He proposed that the case should be sent to a bench of five Judges to

consider whether evidence of alleged confessions which came to light

after a trial, and therefore not in existence at the time of trial,

could amount to additional evidence in terms of the Criminal Procedure

Act.

The court would also have to decide whether the 1991 case of Perrie on

the subject of hearsay, which was against McLay being able to lead new

evidence, had been correctly decided and, if so, whether McLay's case

could be distinguished.

Lord McCluskey said the situation in the McLay case disclosed an

anomaly so striking, and the strict application of the ordinary rules of

hearsay led to such an unfortunate result, that the appeal court should

reconsider the rules.

He added: ''I am conscious that there may be substantial rules of

public policy why no further exception to the hearsay rule should be

considered in this type of case.

''In particular, it would become all too easy for one of several

co-accused who had been acquitted to start creating additional evidence

by making assorted confessions, all with a view to helping his

co-accused, who had been convicted, to be acquitted on appeal, or at

least to be given a second chance by facing a retrial.''

That was one of the issues the five-Judge bench would have to

consider.

Lord Morison agreed that the case should be considered by five Judges.