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.

II The background

[4] The deceased lived near Pittencrieff Park, Dunfermline, known locally as the Glen. He and the appellants were among a number of alcoholics who frequented the Glen and who used the deceased's flat as a drinking den. The deceased was well known and well liked in the neighbourhood. He had a gentle nature and was not a troublemaker. He had been the victim of violence on numerous occasions. He was easily recognisable by his red hair and his characteristic gait. The deceased was to have been a Crown witness in an impending trial of the appellant Allison and an associate, Colin Morrison, and had suffered violence and threats of violence on that account. At 10.20 pm on Thursday 9 November 1995 his mother found his body in his flat at the locus libelled. In the early hours of Friday 10 November, Professor Derrick Pounder of the Department of Forensic Medicine of the University of Dundee visited the scene.

III The trial

[5] The Crown case was that the appellants murdered the deceased on Friday 3 November. It is common ground that several witnesses saw the deceased alive in the course of that day. The defence case was that the appellants assaulted the deceased that day in a fight in which he suffered only a nose bleed and that he was alive and well as late as 7 November, and perhaps even in the early evening of 9 November.

The eye-witness evidence

Witnesses for the Crown

[6] There was no eye witness to the murder; but several witnesses implicated the appellants directly. Thomas McMullan said that he met the appellants in the evening of Friday 3 November. Both had blood on the legs of their jeans below the knees. Allison had blood on his white trainers. The witness went with Johnston to a public house where Johnston told him that he and Allison had given the deceased a "tanking" at his house. On Monday 6 November, Johnston told him that the deceased was dead. He said that he and Allison had given the deceased a "hammering" because he was a "grass." They had "gone over the score a bit" and had hit him with bits of furniture and an iron. They had returned to the house on Saturday 4 November for Allison's glasses but found only the frames.

[7] James Allan said that on Saturday 4 November while in the company of Allison, in a room occupied by George McCrorie, he had seen clothing which he recognised as Allison's. It included bloodstained denims with what seemed to be a lot of blood in the thigh area. Allison asked McCrorie to get rid of the clothing. Allison told this witness that he did not know with whom he had been fighting. Later that day, Allison asked the witness Gordon Shepherd (infra) to get his glasses from the deceased's flat. When Shepherd came back he said that he had seen the deceased lying in his flat and thought that he was dead. Allison did not react to this. Later, Johnston told this witness that he had been in a bit of bother the night before, that is to say 3 November, and said "I hope he's dead. I'll do 15 years for him." On Sunday 5 November the appellants came to his room. Outwith Johnston's presence, Allison said "We went back down there last night. Body was stiff as a board." Allan then gave Allison a spare pair of glasses.

[8] Samuel Edgar, a barman, said that on Friday 3 November Johnston had tried to set himself up as having been in his pub that day at 5 pm. Later that evening, when he was giving Johnston and Allison a lift, Johnston said "He'll not be there tomorrow" or "He'll no' survive until tomorrow" or words to that effect.

[9] Gordon Shepherd said that on Saturday 4 November Allison asked him to go to the deceased's flat and get his glasses back. When he looked through the window, he saw someone lying asleep on the floor and, from his red hair, he assumed that it was the deceased. He thought that he was asleep through drink or drugs. Later he thought that he might be dead. This witness conceded that at the time of these events he was in the middle of a "bender" and that he could not recall the precise day on which these events occurred.

[10] Richard Anderson said that on Saturday 4 November Johnston said "He was just a grass anyway" or words to that effect.

[11] James McDade said that on Saturday 4 November Johnston told him that he had been in a bad fight on the Friday night. At about 2.30-3.00 pm that day, this witness accompanied Shepherd to the deceased's flat and through the livingroom window saw a man lying on his back with his shirt up over the right side of his stomach. The witness could see no breathing movements.

[12] George McCrorie said that on the morning of Saturday 4 November Allison gave him a pair of jeans, a shirt and a jacket. Allison asked him to get rid of them. He noticed one or two spots of blood on one leg of the jeans. Allison's right hand was bruised around the knuckles. He was not wearing his glasses. This witness disposed of the clothes at a tip.

[13] PC John Mathieson's evidence supported the defence case. He said that on Tuesday 7 November, at about 6.35 pm, he went to the deceased's flat to deal with a report of a break-in. He shone his torch through the window. The room was illuminated by the torch and by light from the kitchen window. He did not see a body. The furniture in the room was not in the positions shown in the scene of crime photographs taken on 9 November.

Witnesses for the defence

[14] Allison said that he had had a fight with the deceased in his flat on Friday 3 November in which he burst the deceased's nose and caused it to bleed. The fight had lasted for two minutes at most. He had punched him three or four times on the face before Johnston broke up the fight. When Allison left the flat, the deceased was standing up and shouting at him. Allison admitted that he asked McCrorie to get rid of his clothes and that he lied to the police. He said that he did this because he was on bail at the time. He did not recall having met Thomas McMullan on 3 November. He claimed that he had drink-related blackouts. He had been unable to recall many details of what happened at the locus until Johnston refreshed his memory on the following day. He could remember the fight, but could not remember what it was about. He had seen someone at a distance on Monday 6 November near the library whom he thought was the deceased. He denied that he said that he had given the deceased a "tanking." He had said that he gave him a "leathering."

[15] Johnston said on 3 November there had been a minor fight in the deceased's flat between Allison and the deceased in which the deceased suffered a nose bleed. Johnston said that he broke up the fight. When he and Allison left, the deceased was on his feet and was shouting. He was alive and well, apart from the bloody nose. Johnston denied that he made the incriminating remarks attributed to him by the Crown witnesses.

[16] Eileen Thow said that she spoke briefly with the deceased at the Rendezvous Bar on the evening of Sunday 5 November.

[17] Mary Brockie said that in the morning of Monday 6 November she saw the deceased coming out of his flat in the company of a girl. She walked behind them into town.

[18] Janet Thow, Eileen Thow's mother, said that she was more than 50% sure that in the afternoon of Monday 6 November she saw the deceased from the window of her flat.

[19] James Drummond said that some time after 2 pm on Tuesday 7 November he and his wife saw the deceased in the Glen. His wife, Margaret Drummond, corroborated his evidence.

[20] Alan Henderson said that he saw the deceased walking in Nethertown Broad Street on the evening of either Tuesday 7 or Thursday 9 November. He was certain that this sighting had not taken place in the previous week.

Scientific evidence

[21] In Allison's case, the eye-witness evidence was supplemented by real evidence. His clothing was recovered from the tip. Blood found on the shirt and jacket did not belong to either of the appellants. It was highly probable that it was the blood of the deceased. The lenses of Allison's glasses were found in the deceased's flat. Footprints were found on a paper in the livingroom. They corresponded with Allison's trainers in terms of size, pattern and chance damage.

The pathologists' evidence

[22] Professor Pounder and Dr Diana Cox carried out a post mortem examination on behalf of the Crown on the morning of Friday, 10 November. Professor Anthony Busuttil of the Department of Forensic Medicine of the University of Edinburgh carried out a post mortem examination on behalf of the defence on Wednesday, 15 November.

[23] Professor Pounder and Professor Busuttil agreed that death was caused by blunt force head and neck trauma; but they differed as to the time of death. That question was critical because, as a result of the amendment to which we have referred, the advocate depute perilled the Crown case on proof that the murder was committed on 3 November and on no other date.

[24] The post mortem report of Professor Pounder and Dr Cox did not refer to time of death. At the trial, Professor Pounder estimated that death occurred between three days and a week before the body was discovered. His preference was for a time of death in the upper end of that range. He said that the time of death could have been up to two weeks before his post mortem. He preferred a time of death a week or so before the post mortem, rather than three days; but he could not discount the possibility that the death had occurred on 5 November. In cross-examination, he was asked if it were possible that the deceased could have been seen alive less than three days before the post-mortem. He replied that the chance of that was so remote that he would not consider it a serious possibility. Professor Pounder's estimate therefore supported the Crown case.

[25] From his post mortem examination, Professor Busuttil could not assess when death had occurred. He accepted that Professor Pounder had the advantage of him in that respect. From information provided by witnesses who had seen the body while it was at the locus and immediately afterwards, and from a perusal of Professor Pounder's notes, he considered that the death had occurred at least 24 hours before Professor Pounder's post mortem, but probably more than that. He considered that the body had certainly been dead for 36 hours before it was found and could have been dead for up to 48 hours. In his opinion, the deceased had been dead for about 2 days before his body was found, but certainly not for three or four. He was emphatic that the body had not been lying there for seven days. His estimate of the time of death was therefore incompatible with the Crown case.

The trial judge's directions

[26] There was plainly sufficient evidence to entitle the jury to convict both appellants. The trial judge directed the jury that the Crown case was that the appellants committed the murder on 3 November; that the evidence on which the Crown relied was tied to that date, and that, in consequence, the date of death was one of the essential facts. If the Crown did not prove beyond reasonable doubt that the deceased was killed on that date, its case failed and the appellants were entitled to be acquitted. The trial judge referred to the conflicting evidence of Professor Pounder and Professor Busuttil before again directing the jury that if, having weighed all the evidence, they had any reasonable doubt that the deceased had been killed on 3 November, the Crown had failed to prove its case.

IV Post-trial events

The first appellant's appeal against conviction

[27] The first appellant appealed against conviction on grounds that are not material to these proceedings. The appeal was refused (cf Johnston v HM Adv, 1997 SCCR 568).

Correspondence between the first appellant's solicitors and the Chief Constable and Crown Office

[28] In preparing for the trial Mr Stephen G Morrison, the first appellant's solicitor, discovered that the defence witnesses who claimed to have seen the deceased alive after 3 November had given information to that effect to the police during the course of the murder enquiry. Mr Morrison was concerned that the police had not conveyed this information to the procurator fiscal. After the trial he did not let the matter rest. He is to be commended for his professionalism. On 21 March 1996 he wrote to the Lord Advocate complaining about the conduct of the police. He copied the letter to the Chief Constable of Fife Constabulary. On 10 April 1996 Deputy Chief Constable Bennet sent the following reply.

"I refer to our previous correspondence and would advise you that I now have a report on this matter.

In this particular case there was more than sufficient evidence to establish the time of death of Mr Forsyth, and it was clear that any persons stating that they saw Mr Forsyth after 3rd November 1995 were clearly mistaken.

The Police alone did not simply form the view that Mr Forsyth was murdered on 3rd November. That belief was founded upon all the available evidence.

With regard to the penultimate paragraph of your letter, a response was forthcoming following a press release and, indeed, responses were obtained throughout the course of the enquiry. It became absolutely essential that any information gleaned was carefully considered and where necessary sifted and weeded.

During the course of any major enquiry much information is amassed. Such enquiry is wide-ranging and complex with teams of officers gathering and collating evidence. There is a need, therefore, for a senior officer to decide the course of enquiry, ensuring that all evidence pertinent to the enquiry is revealed to the Procurator Fiscal in order that he prepare his case.

In this particular case it became clear that the persons you name and indeed provided as witnesses were mistaken in their view and I am informed that their evidence was not readily accepted by the jury. Additionally, I am informed that the issues you raise were articulated during your client's trial and were not upheld by the trial judge.

In conclusion, it has always been the case that the Police have discretion to discount any course of enquiry. It is the duty of a senior officer, where information contrary to the real facts of the case is placed before him, to make a decision based on his knowledge of the case and his experience. It is important that he ensures that all material evidence is presented to the Procurator Fiscal in order that the latter can prepare his case.

I am satisfied that my officers adopted the correct course of action and sifted, despite your views, information which was unnecessary. This was based on experience of many years and there was most certainly no intent to suppress any significant evidence."

The report referred to in this letter has not been found in police files.

On 5 July 1996 Mr Norman McFadyen, the Deputy Crown Agent, replied as follows:

"I refer to previous correspondence and apologise for the delay in letting you have a substantive response to your letter of 21 March 1996 to the Lord Advocate, to which I have been asked to reply. You will appreciate, however, that enquiry required to be made of the Procurator Fiscal and by him of the Fife Constabulary.

I understand from the Procurator Fiscal that he was provided with all statements taken by the police in this case. These did not include statements of the defence witnesses in question and I understand that the police do not have a record of any statements having been taken from the defence witnesses. After the death of Andrew Forsyth the police conducted what amounted virtually to door to door enquiries which involved a very large number of persons being spoken to. I am advised that no details were retained of the results of any enquiries which were discounted during that process and, accordingly, statements were not prepared.

You will of course be aware of the duties of the police in investigating and reporting cases as described by Lord Justice-Clerk Thomson in Smith 1952 JC 66, including the power of selection in ensuring that evidence which is relevant and material is put before the Procurator Fiscal."

The second paragraph of this letter was based on untruthful information given by Fife Constabulary. The letter was also at odds with Deputy Chief Constable Bennet's letter. The third paragraph would perhaps have been better directed to the Deputy Chief Constable.

[29] On 17 July 1996 Mr Morrison again wrote to Crown Office with some further points. On 3 February 1997 the Deputy Crown Agent replied as follows:

"I refer to previous correspondence and in particular to the points raised by you in your letter of 17 July 1996.

In light of the experience of this case and consideration of the matters which were previously raised by you, the Regional Procurator Fiscal and District Procurator Fiscal arranged to meet the Deputy Chief Constable to discuss the lessons of the case and in order to ensure that the implications of Smith v HMA 1952 JC 66 were properly understood. Steps have been taken to ensure that there is no doubt about the proper relationship between the police and the Procurator Fiscal in this regard. The Lord Advocate and I are in no doubt that the information which was provided to the police by the witnesses in this case should indeed have been drawn to the attention of the Procurator Fiscal. That view is being made quite clear to the police at the highest possible level as also is the Lord Advocate's request that the issues which have arisen in this case be stressed in police training.

It will always be a matter for operational judgement in each investigation to what extent and in what form information conveyed, in particular during door to door type enquiries, should be recorded. In my letter of 5 July 1996 I informed you that I understood from the Procurator Fiscal that he was provided with all statements taken by the police in this case and that these did not include statements of the defence witnesses in question and that I understood that the police did not have a record of any statements having been taken from the defence witnesses. I conveyed that information to you on the basis of what the Procurator Fiscal had been told by the police. In the course of further discussions between the Regional Procurator Fiscal and the Procurator Fiscal and the Deputy Chief Constable this matter has been further explored and it is clear that the information which I gave you was inaccurate.

It is now clear that there was a limited computer record in respect of one witness, a notebook entry in respect of the account of another and a HOLMES computer record of the account of a third witness. While none of this material had been extended into statements for submission to the Procurator Fiscal it is now clear that the information which I previously conveyed to you in my letter of 5 July was inaccurate and misleading in relation to the retention of the results of enquiries by the police and the taking of statements. The Procurator Fiscal is satisfied that there was no intention on the part of the police deliberately to mislead him in this matter. The Lord Advocate has instructed that it be made clear to the Chief Constable that it is wholly unacceptable that misleading information was given to the Procurator Fiscal when these matters were raised. Needless to say, he very much regrets that any misleading information was conveyed to you.

As I hope I have made clear, lessons have, however, been learned from the investigation of this case."

[30] With this long-delayed letter the Deputy Crown Agent formally admitted that his letter of 5 July 1996 had been based on "inaccurate and misleading" information provided by Fife Constabulary. This letter, one might have thought, set the record straight and gave the first appellant the comfort of knowing that steps had been taken and lessons had been learned. Unfortunately, this letter too was based on false information given by Fife Constabulary. As we shall show, the fourth paragraph did not give a complete account of the information available to the police at the time of their report to the procurator fiscal, and in particular of the extent of the information contained in the HOLMES (Home Office Large and Major Enquiry System) computer record, which we shall describe later. But for the persistence of Mr Morrison this letter would have been the last word on the subject.

[31] By 2000 the Commission had begun its investigation. It learned from Crown Office that the witness in respect of whom there was a limited computer record was Margaret Drummond, that the witness in respect of whom there was a police notebook entry was Eileen Thow and that the witness in respect of whom there was a statement on the HOLMES computer record was James Drummond. Crown Office also disclosed that the existence of Eileen Thow, Janet Thow, Margaret Drummond, James Drummond and Mary Brockie was unknown to the procurator fiscal until the defence list of witnesses was intimated to him on 27 February 1996.

[32] The Commission then pursued its own investigations and discovered that, contrary to the Deputy Crown Agent's letter of 3 February 1997, the police had had information regarding no fewer than 11 potential witnesses to the fact that the deceased was alive after 3 November, namely Eileen Thow, Janet Thow, Mary Brockie, James Drummond, Margaret Drummond, Alan Henderson, Michael Healy, Karen Wheelwright, Mhairi Cormack, Robert Young and Michael Franklin. The evidence that we have heard shows that at that stage the police knew of other potential witnesses to that fact. Even after the Commission began its investigation the police rearguard action continued. An internal memorandum from D Supt Munro, as he had then become, to his colleague D Insp Watson was recovered by the Commission. It is date-stamped 14 November 2001. It is in the following terms.

"I think you should provide all reports to the PF but highlight that these were internal for police eyes only. You should make the point that when I and DS Nessell, as reporting officers took the papers to Mr Hamilton, PF, we informed him that there were a number of other peripheral witnesses which we did not consider worthy of inclusion at that time. He said that was fine and if necessary he could see them during police precognitions. No police officers were precognosced.

As outlined in the reports the witnesses that were known to me were not submitted for the reasons given. I have subsequently learned that other individuals have come to light but this was not known to the reporting officers at the time. Contact me if you require anything else.

PS It may be worth mentioning that these decisions were made in 1995, before the requirements of ECHR and in the absence of directions on disclosure."

In the second paragraph Mr Munro does not name the individuals to whom he is referring. From the history of the enquiry that we shall outline, we conclude that all relevant witnesses had come to the notice of the police before the case was reported to the procurator fiscal. Mr Munro could not assist us on this memorandum. He said that he had no recollection of it.

V The evidence heard by this court

(1) Evidence that the deceased was alive after 3 November

(a) Witnesses who gave evidence at the trial

[33] Eileen Thow spent Sunday 5 November 1995 with her fiancé David Guild and his friend Peter Weaver. In the afternoon they went to a meeting of amateur radio enthusiasts in Dundee. In the evening they went to the Glen to see a fireworks display. When they got there, the display was over. They then went to the Rendezvous Bar of which Eileen Thow's father, John Thow, was the licensee. Eileen Thow stood beside the deceased at the bar and spoke with him for some seconds. She then sat at a table facing the bar. She saw the deceased finish his drink and leave. Soon after fireworks night she spoke to the police at her home.

[34] Mary Brockie knew the deceased by sight. His flat was at the top of her street. On Monday 6 November she left her house at 10 am to go to the town centre. It was the morning after the fireworks display, which she remembered. When she got to the top of the street, the deceased came out of his door with a girl. The witness followed them all the way to the King's Gate Shopping Centre, a walk of about 121/2 minutes. She later saw the deceased and the girl at the top of King's Gate. The deceased was talking to friends. This evidence confirmed what Mrs Brockie had said in her door to door interview questionnaire, except that according to the questionnaire she said that she saw the deceased at 10.15 am.

[35] Janet Thow was the licensee of Jinty's Bar in Nethertown Broad Street, which was about two hundred yards from the deceased's flat. She knew the deceased well. He had a distinctive loping walk. In the afternoon of Monday 6 November between 1 pm and 3 pm she saw him from the window of her flat above the bar. He was on the other side of the street. She recognised him from his walk and from his clothing.

[36] James Drummond again spoke to the occasion on Tuesday 7 November when he and his wife walked through the Glen at about 2.10 pm and saw the deceased. Mrs Margaret Drummond gave evidence to the same effect. Both of these witnesses were confident of their identification of the deceased, whom they knew well.

[37] PC John Mathieson, now retired, confirmed the evidence that he gave at the trial that on Tuesday 7 November at about 6.35 pm he looked through the living room window of the flat and did not see a body.

[38] Alan Henderson was a part-time pools collector. He knew the deceased slightly. On Friday 10 November he went to the incident caravan and reported that on Thursday 9 November at 6.30 pm, while he was pools collecting, he had seen the deceased walking in Nethertown Broad Street. It dawned on him later in the week that he had also been collecting in that area on Tuesday 7 November. He confirmed the evidence that he had given at the trial to the effect that he saw the deceased on either of those dates. He remained certain that this sighting did not occur on the Thursday of the previous week. He was certain that it was the deceased whom he saw because he had a particularly clumsy walk and had red hair. He saw him from his car. He was driving slowly at the time because of roadworks.

[39] We found each of these witnesses to be credible and reliable. They were transparently honest people who tried to tell the truth to the best of their recollection. The only material point of uncertainty was in the evidence of Alan Henderson. We believe his evidence that he saw the deceased after 3 November; but, having regard to the pathologists' evidence, we think it more likely that it was on Tuesday 7, rather than Thursday 9, that he saw him.

(b) New witnesses

[40] Michael Healy owned a newsagent's shop in Woodmill Road, about one and a half miles from the deceased's flat. The deceased was an occasional customer. When this witness learned of his death, he remembered having seen the deceased in the shop on the morning of Saturday 4 November 1995 at about 6.30 am. He had reason to remember that it was a Saturday because he was putting magazine supplements into the newspapers. The deceased bought a newspaper and they had a conversation. The deceased had a mark next to his left eye.

[41] Mhairi Cormack was a senior housing officer with Dunfermline District Council. She had no recollection of having given a statement to the police on Friday 10 November 1995, but she accepted that what was recorded in the statement that bore to be hers accurately reflected what she had said at the time. According to a statement taken from this witness by WPC Amanda Givan on 10 November, she called at the deceased's flat at about 2.15 pm on Tuesday 7 November 1995. She was accompanied by a colleague, Robert Young. They were unable to get into the house. She looked in the livingroom window. It was daylight. She had a good view of the room and saw nothing suspicious. She did not see a body. Like Miss McCormack herself, we have no reason to think that what is recorded in the statement is not an accurate reflection of what she recalled at the time.

[42] Robert Young too looked in the window, which he mistakenly thought was the bedroom window. He definitely did not see a body, although he accepted that the light was not good.

[43] John Thow knew the deceased as an occasional customer at the Rendezvous Bar and at Jinty's Bar. When he learned of his death on Thursday 9 or Friday 10 November, he remembered that he had last seen him in Jinty's Bar on the morning of Friday 3 November. The deceased's face was uninjured. He told the police that Michael Franklin had told him that he had seen the deceased in Jinty's Bar in the afternoon of Wednesday 8 November.

[44] Michael Franklin is dead. In an affidavit dated 21 September 2001 he confirmed that he was with the deceased in Jinty's Bar in the early afternoon of Wednesday 8 November and spoke with him.

[45] Paul King is not mentioned in the Commission's referrals. He is imprisoned for a murder committed in December 1995. He said that the police interviewed him about the death of the deceased on Sunday 12 November. He had known the deceased since he was a boy. He remembered having seen him on Wednesday 8 November. He left work that day at 5 pm. Two or three minutes later, he saw the deceased in a telephone box in the High Street with Derek Mooney's girlfriend. She was drunk and was making a fool of herself. She was shouting and bawling at the deceased.

[46] Karen Wheelwright knew the deceased well. She was at school with his brother. She learned of his death from a television broadcast in which it was said that he had been murdered on 3 November. She realised that she had spoken to him after that date. She said that on 7, 8 or 9 November between 11.00 and 11.30 am, when she was on her way to work, she saw him standing at the corner of High Street saying cheerio to another male person. She spoke to him. This could not have taken place during the previous week. She was emphatic that whether it was on 7, 8 or 9 November, she saw him after the date given in the broadcast. She was interviewed by the police on Monday 13 November and gave this account.

(2) Evidence of the pathologists

[47] We have the impression that Professor Pounder's evidence before us on the question of time of death was more guarded than it was at the trial. He accepted that from the post mortem report one could conclude that the body had been dead for more than 24 hours. It followed, therefore, that signs of putrefaction gave the best indication of time of death; but the state of putrefaction was dependent on ambient temperatures. In attempting to reach a view as to time of death, he would ask the police for such information as they had as to when the deceased was last seen alive and when the body was found. This was because circumstantial evidence was often much better than medical evidence. The assessment of time of death depended largely on evidence of past sightings. He accepted that the estimation of time of death was not an exact science and that a reliable observation of the deceased alive would overturn any scientific opinion to the contrary. Whatever scientific inferences could be drawn from the state of putrefaction must yield to any contrary evidence based upon a reliable observation that the deceased was alive. If there was reliable evidence that the deceased was alive within three days of the post mortem, then, for whatever reason, the findings of the post mortem were anomalous. Experience had taught him that, even applying science, one could make an error over time of death. He said that he would find it difficult to accept that the deceased was seen alive on Wednesday 8 November; but that that was not impossible.

[48] Professor Pounder was emphatic that he did not express the view that the deceased died on 3 November. He said "I would never have pinned my colours to the mast and said that death occurred on 3 November." But by the time of the post mortem he believed that the police had concluded that that was the date of death. After the post mortem, the police did not return to him to ask for his view on the point in the light of further evidence.

[49] Professor Busuttil adhered to the opinion that he gave at the trial. Taking into account rigor mortis, putrefaction, the internal state of the body and the ambient temperature, he concluded that the deceased had been dead for between 24 and 48 hours before Professor Pounder's post mortem. He said that a sighting of the deceased alive on the afternoon of 8 November was "not impossible, but we're stretching it." The possibility of a sighting on 7 November was "much more likely." Sightings in the period 5 to 7 November were entirely consistent with his theory of time of death.

[50] Like Professor Pounder, Professor Busuttil accepted that in the inexact science of estimating time of death the pathologist should take into account reliable eye-witness evidence of sightings of the deceased and of the finding of the body. He positively excluded the possibility that death occurred on 3 November because that was inconsistent with the process of decomposition and with his own findings.

(3) Evidence about the police enquiry

[51] Although this is an appeal against conviction and not an inquiry into the conduct of the police, it is nevertheless necessary, for a proper understanding of the grounds of appeal, that we should set out in detail our findings as to the history of the enquiry and those aspects of it that have led to these referrals.

[52] Evidence about the police enquiry was given by seven police officers who took part in it; namely WPC, now WDC, Amanda Givan; DC, now D Insp, Kenneth Chatham; DC, now DC Insp, Colin Hershaw; DC, now DS, Lindsay Black; DC, now Insp, James McCluskey; DC, now Insp, Colin Caldwell, and the former D Insp Munro. We shall refer to these officers who are still in service by the ranks that they held at the time of the enquiry.

[53] We regret to say that we did not find Mr Munro to be a credible witness. He was taken point by point through the inadequacies and irregularities in the enquiry procedures. He was unable to give us a satisfactory explanation of any of them. He repeatedly dealt with counsel's questions by saying that he had no explanation to give; or that he could not recall what had happened; or that a particular irregularity was the fault of D Insp McEwan or of lower-ranking officers whom he was unable to name. In the result, he accepted no personal responsibility for any of the misconduct that this case has brought to light. Much of his evidence was untruthful, in our view.

[54] With the exception of WPC Givan, the other officers from the enquiry team who gave evidence did not impress us. There is no evidence directly implicating any of them individually in the suppression or alteration of statements; but, despite the senior ranks that some of them now hold, we were not satisfied that they told us the whole truth. It was our clear impression that they knew more than they were prepared to admit.

[55] WPC Givan, however, assisted the parties and the court by retrieving all of the information that can be found in the HOLMES records of the case. We accept her as a witness of credit whose only concern was to search for the truth.

[56] We also heard evidence from Alexandra Adamson, who was present when Karen Wheelwright gave her police statement, and from Robert Hamilton, who was procurator fiscal of Dunfermline at the time of the enquiry. Both of them were witnesses of obvious credibility and reliability.

VI The conduct of the police enquiry

[57] The enquiry used the original version of the HOLMES software. This system classifies the witnesses by serial number and creates for each a nominal record in which numbered actions and statements are recorded, priorities given to actions and statements are classified and cross-references are noted with other witnesses. When an action is initiated from the incident room and allocated to a specified officer, it is noted and timed and the result of it is added to the file. A statement taken in pursuance of an action is given to the receiver in the incident room and a printed version is thereafter entered in the system. A statement reader then decides what actions, if any, to raise in the light of it and classifies the priority to be given to it. The senior investigating officer (SIO) would not normally be working in the incident room or allocating actions. He would liaise with the officer in charge of the incident room, namely in this case D Insp McEwan. The SIO would give regular briefings to the enquiry team and to those in the incident room and report on progress.

[58] WPC Givan did not work in the incident room. She is an experienced trainer in the HOLMES system. She said that because the statements in this case had been dealt with under the original version of HOLMES, there was no audit trail as to who inputted the statements into the system. It had an audit trail for actions only.

[59] For the purposes of these referrals, the first significant stage in the enquiry was the post mortem. At the post mortem Professor Pounder and Dr Cox could not express an opinion as to the time of death. This is confirmed by a note in Mr Munro's handwriting that has been recovered from police files. It was made by him on information reported to him during or just after the post mortem. It contains the comment "no indication time of death." Professor Pounder requested that the police should obtain the average daily temperatures for Dunfermline for the period Tuesday 7 to Thursday 9 November, day and night. In the event, that information could not be obtained. Professor Pounder had to base the opinion that he gave at the trial on evidence that was later obtained of temperatures for that period in Dundee, which he considered to give a reasonable approximation.

[60] On 10 November the police set up a major incident enquiry. They brought an incident caravan to the locus and carried out house to house interviews. Despite the post mortem finding that there was no indication of time of death, the police committed themselves within 24 to 48 hours of the discovery of the body to the theory that the death occurred on Friday 3 November. They based this theory almost entirely on the information given to them by the drinking associates of the deceased whose evidence we have summarised. But, as is now agreed, numerous witnesses came to their notice who spoke to having seen the deceased alive after that date.

[61] Mr Munro at first told us that he believed that the police contacted the pathologists once they had information that the death took place on 3 November. That evidence was contradicted by Professor Pounder, it was not vouched by any contemporaneous document and we did not believe it. Mr Munro later said that he himself had not pursued the question with the pathologists, and could not say whether other officers did so. He did not know which officers would have dealt with that aspect. All the evidence establishes that the police did not consult the pathologists on the question of time of death at any time after the post mortem.

[62] On 10 November at 4 pm WPC Givan interviewed Mhairi Cormack. Miss Cormack gave the statement that we have summarised. In her HOLMES file, her statement was categorised as "low" priority. The action log shows that on 11 November the file was "resulted." Miss Cormack was not given a follow-up interview. Her colleague Robert Young was not cross referenced in Miss Cormack's file and he was not interviewed. Nothing was done in consequence of Miss Cormack's statement until 3 September 1996 when it was "filed." That was done at a time when the Crown Office was considering its reply to Mr Morrison's letter of 17 July 1996.

[63] Mr Munro was unable to explain any of this. He said that he did not deal with that matter himself. On the note of the police action in relation to Miss Cormack there is a handwritten note "NFA [sc no further action] meantime." Mr Munro suggested that the statement might have been filed because of an oversight on the part of D Insp McEwan. He said that he could not identify the handwriting on the note. He said that it must be that of someone in the incident room.

[64] On 10 November Mary Brockie was interviewed in the course of the house to house enquiry. She said that she had seen the deceased on Monday 6 November. Her completed house to house enquiry form was not entered in the HOLMES system. She was thereafter interviewed by the police; but there is no trace of her statement in police records. She was again interviewed on the eve of the trial by Mr Munro, as we shall relate.

[65] On the same day Alan Henderson gave a statement at the incident caravan that he had seen the deceased in Nethertown Broad Street at 6.30pm on 9 November. On 11 November an action (A51) was raised, with "high" priority, to take a statement from him. It was allocated to D Insp McEwan. On 16 November the action was completed and "resulted" without any statement having been taken. The action log print records "No further enquiries instructions SIO." Mr Munro explained that he made that decision in consultation with D Insp McEwan. He justified it by saying that he thought that Mr Henderson was "completely mistaken" because the pathologist had found at the locus that rigor mortis had set in. It seems not to have occurred to Mr Munro to investigate whether Mr Henderson might have seen the deceased in Nethertown Broad Street on any other evening of that week. Mr Henderson was not thereafter interviewed by the police; nor was he precognosced by the police in the days before the trial.

[66] On 10 November at 7.15 pm DC Hershaw took the statement of James Drummond, who said that he had seen the deceased on Tuesday 7 November in the circumstances that we have described. That statement was put into the HOLMES system. It was "filed" on 20 November.

[67] At the same time DC Hershaw interviewed Margaret Drummond. Some brief notes of the interview are in the HOLMES system under the description of a statement numbered S17. According to these notes, Mrs Drummond expressly referred to her sighting of the deceased in "the Glen," but this information was given a "low" priority. In the nominal record relating to Mrs Drummond (witness N76) there is noted "N76 describes deceased clothing - negative statement." Mrs Drummond's original police statement has not been found. It may have been recorded in DC Hershaw's notebook. Fife Constabulary were unable to provide the notebook when required to do so by the procurator fiscal.

[68] At about this time, Michael Franklin was interviewed in the course of the house to house enquiry. He told the police that he had been with the deceased in Jinty's Bar on Wednesday 8 November. The police hinted to him that he was probably mistaken about this. There is no trace of his house to house interview form in the police records. He was not interviewed thereafter.

[69] On Saturday 11 November at 11.40 am DC Chatham took a statement (S42) from John Thow, erroneously referred to in the statement as John Dow. This statement was in DC Chatham's handwriting. It was not signed by Mr Thow. In a paragraph at the end of it, Mr Thow said that Michael Franklin, a customer of Jinty's Bar, reckoned that the deceased was in the bar "early in the afternoon" of Wednesday 8 November. In a subsequent version of the statement put into the HOLMES system this paragraph was omitted. In its place there were substituted the words "I do not know the people responsible for killing Drew." This altered version of the statement was continued in the nominal record that was later prepared.

[70] Neither DC Chatham nor DC Hershaw could say why or by whom the handwritten statement of Mr Thow was altered. DC Chatham suggested that it would have been altered by someone at or above Inspector level. He said that after a statement was recorded by a police officer it could be changed only by, or on the initiative of, the officer in charge of the enquiry. He agreed with the suggestion of counsel for Johnston that Mr Munro appeared to be the prime suspect. He agreed that Mr Munro would have known how the statement had been doctored, if he was on top of his job. Mr Munro himself could offer no explanation. He said that he had learned of this irregularity only when he gave evidence before us.

[71] Mr Thow confirmed to us that he definitely told the police about the remark made to him by Michael Franklin. We believe him. On the other hand, he could not recall having said to them that he did not know who killed Drew. We do not believe that he said that.

[72] An action record was created for Michael Franklin. It was given "high" priority. It was cross-referenced to John Thow. On 11 November at 3.16 pm an action (A68) was raised by Mr Munro to "Contact N38 Franklin who may have seen the deceased drinking in Jinty's about 1345 hrs on Wednesday 081195." On 16 November at 2.13 pm it was "changed to for (sic) allocation 1 priority 1" and allocated to D Insp McEwan. The action was "completed" at the same time and was "resulted" at 2.14 pm. At the same time the HOLMES record was "filed." Although these times may be artificial, since the HOLMES record may have been created retrospectively, it is clear that a decision was made not to follow up the lead relating to Michael Franklin. The action log print records "No further enquiries instructions SIO." DC Chatham could not explain why the action on Michael Franklin was cancelled so promptly. Mr Munro said that he had no knowledge of that decision and had no recollection of the instruction.

[73] In the action record print relating to Michael Franklin, his possible sighting of the deceased early in the afternoon of 8 November is timed at "about 1345 hrs." Neither Mr Munro nor DC Chatham could explain where this timing came from. There is nothing in the HOLMES record to show its source.

[74] Janet Thow gave a statement to the police at about the same time as her husband about her sighting of the deceased on 6 November. There is no trace of it in the police files. There is no nominal record for Mrs Thow in the HOLMES system.

[75] As a result of the statements of John and Janet Thow, it came to the notice of the police that their daughter Eileen Thow had relevant evidence to give. Eileen Thow gave a statement to the police some days after her parents. The significance of it was unmistakable. She had reason to remember that she had seen the deceased in the Rendezvous Bar on the night of Sunday 5 November. She could relate that to her visit to Dundee and to the fireworks display in the Glen. The date and time of her visit to Dundee and her presence in the Rendezvous Bar on the same evening could easily be corroborated. There is no HOLMES record for Miss Thow and no trace of her statement. Mr Munro was unable to explain this. He said that other officers must have failed to put her statement into the system.

[76] On Sunday 12 November DC McCluskey in response to an action (A13) raised on 11 November, and on 12 November raised to "priority 1," took a statement in his own handwriting from Paul King at Dunfermline Police Station in the presence of PC Tait. The statement was unsigned. It recorded King as having said that he had seen the deceased about a week earlier, that he could not remember the exact date and that he had seen him at the phone boxes near Guildhall Street "with Diane (witness Kellock)." In the printed version of the statement, that appeared as "with Diane (Colin Morrison's girlfriend)." In the handwritten version the final sentences were

"I think China's first name is Steve. I don't know his surname. I don't know where he lives now. I do not know who would murder Drew and cannot think of any reason someone would have any reason to do so."

In the printed version these were deleted and there were substituted the words "I can identify China (accused Johnston)." No further action was taken on King's statement. Diana Kellock was not cross-referenced in King's HOLMES file.

[77] On Monday 13 November at 11.35 am DC Black and a colleague took a statement, in DC Black's handwriting, from Karen Wheelwright in the presence of her employer, Alexandra Adamson. Miss Wheelwright said that she saw the deceased between 11.00-11.30 am on Thursday 9 November, or possibly on Tuesday 7 or Wednesday 8; but not during the previous week. She said that "it was definitely Drew." There is no reference in her police statement to her having spoken with the deceased on that occasion. Miss Wheelwright said that both officers expressed surprise at what she said. They suggested to her that she could not have seen the deceased when she said she did. Alexandra Adamson corroborated her evidence on this point.

[78] The printed version of Miss Wheelwright's statement recovered from the HOLMES system has been edited. Certain words have been scored out. DC Black reported inter alia that a full statement had been noted from her regarding a sighting of the deceased "last week;" but the nominal record for this witness under the heading of cross references says "Alleged sighting of [deceased] 09.11.95 unmarked facially, nothing relevant." DC Black said that he did not make that entry in the nominal record. He agreed that the alleged sighting was relevant. Mr Munro said that he had no knowledge of Miss Wheelwright's statement.

[79] Karen Wheelwright was not re-interviewed. In the handwritten statement DC Black had noted Alexandra Adamson's particulars. That lead was not followed up. In Karen Wheelwright's HOLMES file there is no cross reference to Alexandra Adamson.

[80] By letter dated 14 November Mr Hamilton instructed that all statements in the case should be submitted to him within five days from that date.

[81] Thursday 16 November at 1.05 pm Michael Healy telephoned the police and told them that he had seen the deceased in his shop on 4 November 1995 at about 6.30 am. DC McCluskey took a statement (S97) in his own handwriting from Mr Healy at 5.15 pm that day. In it Mr Healy confirmed that he saw the deceased on Saturday 4 November. He said that it was possible he might be mistaken, but that he did not think so. The nominal record relating to this witness, under cross references, has the entry "S97: N151 [Healy] gives negative statement not required as witness." No police witness suggested that Mr Healy's statement could properly be described as negative. Mr Munro could not identify the author of this entry. He suggested that it might be the statement reader in the incident room or the officer in charge of the incident room. No further action was taken in relation to this witness.

[82] Meanwhile, on 14 November an action (A152) was raised and allocated to DC Chatham and DC Broadley to re-interview Margaret Drummond "specifically in regard to the movements of [the deceased] on 03111995." The following result of it is noted in the handwriting of WDC Beveridge "Drummond re-interviewed - no need for further statement - nothing further learned other than she may be mistaken by the sighting of the victim on Tuesday (