Appeal court refuses attempted murder appeal despite Crown failure to disclose victim statement

About this case:

• Citation:
  [2026] HCJAC 45
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

The High Court of Justiciary Appeal Court held that, although the statement should have been disclosed before Paul McCann’s trial, there was no real possibility that possession of it by the defence would have caused the jury to reach a different verdict.

McCann was convicted of attempted murder after repeatedly striking another prisoner, Sean Dempsey, with a bladed article at HMP Perth on 5 March 2023. He had lodged a special defence of self-defence and gave evidence in support of it.

He was also convicted of two offences arising from an earlier incident at HMP Low Moss, including assault to severe injury and permanent disfigurement with blades attached to pieces of wood. The appeal concerned only the attempted murder conviction.

The appeal was heard by the Lord Justice Clerk, Lord Matthews and Lord Clark. The opinion of the court was delivered by the Lord Justice Clerk, Lord Beckett. Alonzi, Faculty Appeals Unit, appeared for McCann, while Cameron KC (sol adv), instructed by the Crown Agent, appeared for the Crown.

Attack captured on CCTV

The Crown case principally relied on CCTV footage, evidence from two prison officers and agreed evidence concerning the complainer’s injuries. Although Mr Dempsey appeared on the Crown witness list, neither side called him to give evidence.

The CCTV did not capture the few seconds during which the incident began inside his cell. It showed McCann approach the cell with his left hand in his pocket, enter briefly and emerge three seconds later followed by Mr Dempsey.

The two men then exchanged blows in the communal area. Mr Dempsey was visibly bleeding from his neck and face. Other prisoners were subsequently seen apparently concealing a small object, which the appeal court inferred was the razor used in the assault.

The court considered that the footage supported an inference of a premeditated attack and agreed with the trial judge’s assessment that McCann had taken the weapon into the cell.

A prison officer also gave evidence that, after the incident, another officer remarked to McCann that he had almost struck the complainer’s jugular. McCann was heard to reply: “That’s what I was going for.”

Mr Dempsey sustained several cuts to his face, neck, chest and arm. Medical evidence established that the wound to his neck had come close to the carotid artery and jugular vein and that damage to either could have resulted in catastrophic haemorrhage.

McCann’s evidence was that he had entered the cell to speak to Mr Dempsey about trouble between them and had not been armed. He said Mr Dempsey grabbed a razor, accidentally cut himself and dropped it, after which McCann picked it up and acted in self-defence.

Victim statement not disclosed

The issue on appeal arose from a victim statement completed by Mr Dempsey but not disclosed to the defence before trial. In it, he described his injuries as effectively self-inflicted and wrote that “The only victim in my opinion is Paul McCann”. Elsewhere he stated: “No crime was committed in my opinion”, and described McCann rather than himself as the victim.

The Crown received the statement on 27 May 2025 but did not disclose it until after McCann had been convicted and sentenced on 20 February 2026. It accepted before the appeal court that the material ought to have been disclosed because it was capable of materially weakening the prosecution case or materially strengthening the defence case. McCann argued that, had his lawyers possessed the statement, they could have called Mr Dempsey as a defence witness. He might then have supported McCann’s account or, if he departed from what he had written, been questioned about the statement.

The Crown explained that the failure resulted from two internal clerical errors and said steps had been taken to prevent similar failures recurring. It nevertheless maintained that the non-disclosure had not caused a miscarriage of justice.

‘Real possibility’ test

The appeal court considered the test applicable where material which ought to have been disclosed was withheld from the defence. Referring to McInnes v HM Advocate, Fraser v HM Advocate and Macklin v HM Advocate, Lord Beckett said the question was whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had the material been disclosed.

The court rejected McCann’s argument that the proper formulation was merely whether the jury “might” have reached a different verdict. Supreme Court authority had subsequently confirmed the applicable test. Lord Beckett also observed that the victim statement itself could not simply have been placed before the jury in the trial as conducted. Mr Dempsey had not given evidence, meaning he had neither adopted the contents of the statement nor been available for cross-examination on it.

Even assuming disclosure would have led the defence to call him, the court did not know what evidence he would have given. He had not cooperated with attempts by McCann’s representatives to interview him for the appeal.

Strong evidence against self-defence

The court considered any potentially exculpatory evidence from Mr Dempsey had to be assessed against the remainder of the prosecution case. The CCTV showed Mr Dempsey bleeding from his face and neck and contained what the judges considered clear indications that other prisoners were concealing the blade used by McCann. There was no recorded injury to Mr Dempsey’s hands of the kind that might have supported McCann’s account of him cutting himself while handling the razor.

Any evidence favourable to McCann would also have had to be considered alongside Mr Dempsey’s initial insistence to prison officers that nothing had happened, despite the CCTV plainly showing a fight, and McCann’s own acceptance of responsibility to prison officers. Of particular significance was McCann’s statement that he had been “going for” the complainer’s jugular. The court also considered that aspects of the victim statement itself would have damaged the credibility of any exculpatory evidence Mr Dempsey might have given.

Applying the McInnes test, Lord Beckett said there was “no real possibility” that advance disclosure of the victim statement would have caused the jury to return a different verdict. The court added that self-defence could not have succeeded on the circumstances advanced at appeal. If most of the injuries were inflicted in the communal area, McCann had the razor while Mr Dempsey was unarmed and could reasonably have withdrawn. Repeatedly striking an unarmed man in the face and neck with a razor was in any event a “cruelly excessive retaliation”.

Even if the entire incident had occurred within the cell in circumstances where escape was not reasonably possible, the court held that the excessive nature of the response would still have excluded self-defence.

The appeal was refused.