NOTE OF APPEAL AGAINST CONVICTION BY SCOTT LESLIE SNOWDEN AND ROBERT MICHAEL JENNINGS AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 100
XC466/13 and XC471/13
Lord Justice Clerk
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION
by
(FIRST) SCOTT LESLIE SNOWDEN and
(SECOND) ROBERT MICHAEL JENNINGS
Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant (Snowden): Findlay QC, A MacLeod; Paterson Bell (for Gildeas, Glasgow)
Appellant (Jennings): Allan QC, Green; Drummond Miller (for Richard Lobjoie & Co, Glasgow)
Respondent: Prentice QC AD (sol adv), Findlater; the Crown Agent
25 August 2014
Introduction
[1] These appeals focus on the obligations of a trial judge when describing evidence in directions to a jury. There are subsidiary points concerning sufficiency, the admissibility of expert evidence on eye witness identification and the admissibility of statements made by an accused outwith the presence of his co-accused. Ultimately, the court has held that none of the grounds of appeal succeed and the appeals must be refused.
General
[2] On 8 May 2013 the appellants went to trial at the High Court in Glasgow on 22 charges, almost all of which were libelled against both of them. The singular feature of the indictment was the number of alleged instances of wilful fire raising on licensed premises and private houses in Helensburgh and its environs, culminating (charge 22) in the murders of three members of the Sharkey family, namely the father (Thomas), the teenaged son (Thomas junior) and the daughter (Bridget), aged 8. The mother was also severely injured in the fire which was wilfully set on their home on 24 July 2011.
[3] The Crown case lasted many weeks, at the end of which the libels on 7 charges were withdrawn and no case to answer submissions were sustained in respect of 2 more. Neither of the appellants gave evidence although there were the contents of several witness statements and an interview by the police in Mr Jennings’ case. The defence did lead some witnesses and there was a substantial body of evidence agreed by joint minute. Ultimately the jury convicted Mr Snowden of 12 charges (cc 1, 3, 7, 10-17 and 22) and Mr Jennings of 5 charges (cc 10, 14-15, 18 and 22). The convictions (cc 17 and 18) included, in respect of both appellants, concern in the supply of cocaine over the years 2009 to 2011; a crime which neither seriously disputed during the trial.
[4] Chronologically, charge 1 was setting fire to a house under construction at Kingspoint in July 2008. Charge 3 was a similar offence involving the Garth Inn in June 2009. Charge 7 was also a fire-raising, by burning down the house of a family called Chalmers known as “The Steep”, Rhu, in September 2009. The family were away on their boat at the time. Charge 10 was an assault upon a Mr McKinney by slashing his face at his home in Alexandria in January 2010. Charge 11 involved setting fire to the Mariners Pub, which was being renovated by Mr Sharkey, in April 2010. Charge 13 was an assault on a Mr McGinley at the Logie Baird Pub in June 2010. Charge 14 was a more serious assault on Mr McGinley by throwing ammonia at him in the Argyll Bar in January 2011. Charge 15 involved setting fire to Mr McGinley’s home, with him and his family in it, at William Street in January 2011. Charge 22 involved a similar modus operandi, but with fatal consequences, on the Sharkey’s home in Scott Court later that year.
[5] It is not unreasonable to characterise the offences as extremely serious and escalating gangster type activity in relation to which the Crown alleged that Mr Snowden was the main protagonist and Mr Jennings his gofer. In that connection, Mr Snowden had a series of alibis for most of the fire-raising charges (3, 7, 11 and 22) and incriminations of various persons on those and other charges. However, it was not suggested that he had personally carried out the fire-raisings (other than charge 1) or the assaults. Rather, he had instructed others, mainly, but not exclusively, Mr Jennings, to do his bidding.
[6] On 25 July 2013, which was the day after the jury had returned their verdicts, Mr Snowden and Mr Jennings were sentenced to imprisonment for life with punishment parts respectively of 33 and 29 years. No appeals are taken against sentence.
Evidence
[7] Although there was a multiplicity of charges for the jury to consider, and the trial was a long one, the issues for determination were not intrinsically complicated. As a generality, it was not disputed that the crimes had been committed and, in particular, that the fires had been set deliberately, usually by pouring petrol through a broken window or a letterbox in a door. The areas of conflict involved relatively simple questions of fact; notably whether Mr Snowden had instructed the libelled criminal activity and whether Mr Jennings had carried it out.
[8] The evidence against Mr Snowden consisted of testimony from certain witnesses about what he had allegedly said to them about the crimes, either before or after they had been committed, and in the coincidences of these crimes occurring after, and often very shortly after, an altercation between Mr Snowden and the subsequent victims. The testimony came largely from two witnesses. Lee McCarthy was the first of those. He spoke, for example, to Mr Snowden having admitted to the Kingspoint incident (c 1), the Garth Inn (c 3), the slashing of Mr McKinney (c 13) and the Cruin (c 16). Mr McCarthy said that Mr Snowden had threatened to have Mr Sharkey shot when he (Sharkey) was to be at a charity dinner at the Victoria Halls. When Mr McCarthy asked him afterwards why that had not happened, Mr Snowden had said “I’ve got something else in mind”. Shortly after the deaths of the Sharkey family (c 22), Mr Snowden had, in conversation with Mr McCarthy, referred to the fire with the phrase “It all went wrong”; something which, in the circumstances of proved animosity between Mr Snowden and Mr Sharkey, could have been taken as an admission of some form of involvement. Mr McCarthy also said that he had been present when Mr Snowden had instructed Mr Jennings to set fire to the Mariners (c 11) by saying “you know what to do” and then specifically that he wanted it burnt down. He said that Mr Snowden had also told Mr Jennings to throw acid at Mr McGinley (c 14).
[9] Secondly, there was Colin Hughes, who gave not dissimilar testimony. In relation to Kingspoint (c 1), for example, he testified that Mr Snowden had said “That will teach them not to take out my security”; the fire having occurred shortly after the site manager had declined an offer to that effect from Mr Snowden. He said that Mr Snowden had told him that “the Garth is getting torched tonight” (c 3); as indeed it was following upon Mr Snowden having earlier been barred from entering it. Mr Hughes had also heard Mr Snowden making other remarks about having burnt the Garth and how Mr Jennings had left a tool on a windowsill at the scene; such a tool having been found in that place. In relation to the extraordinary events involving The Steep (c 7), Mr Snowden had fallen out with its owner following an incident at the Rhu marina, where Mr Snowden was employed to operate a tender for the boats berthed there. Mr Hughes said that Mr Snowden had told him that he was going to find the owner’s address and get Mr Jennings to “burn him out”. He said that, when Mr Snowden was in Liverpool during the weekend of the fire, he had received a text from him asking him to see if that job had been done. On his return from Liverpool, where, as he admitted to Mr Hughes, he had set up a false alibi by involving the police in a fabricated incident at his hotel, Mr Snowden had remarked “That will teach him for f…g about with me and now he’s got to go and live on his boat”.
[10] In relation to the assault on Mr McKinney (c 10), Mr Hughes said that he (Hughes) had driven Mr Jennings to his house to do it, at the request of Mr Snowden. Mr Snowden had also said to him that the Mariners (c 11) “wouldn’t last long” as people from Liverpool (“scousers”) were going to burn it down. In relation to the Cruin (c 16), Mr Snowden had told him that the scheduled wedding of Mr McGinley’s daughter at the Cruin would not be going ahead, because he would make sure that it did not. He told him later that Mr Jennings, whom he referred to as “that daft bastard Rab”, had set fire to the fire doors; as indeed someone certainly had. In relation to the Sharkey house (c 22), Mr Hughes spoke to Mr Snowden saying that he would get Thomas Sharkey “done in” and “burnt out” while he was away. Mr Snowden was in Mexico when the fire occurred.
[11] A number of other witnesses did give similar testimony in relation to particular charges. For example, Simon Fraser spoke to a remark, made by Mr Snowden after the Rhu incident, similar to that reported by Mr Hughes. He spoke to threats by Mr Snowden towards Mr McKinney and to saying afterwards that he (McKinney) had got what he deserved. Mr Snowden had said after the Sharkey fire (c 22) that Mr Sharkey too had “got what he deserved”. This had been when they had been in the Ruby pub, where Mr Fraser was scheduled to repay a loan from Mr Snowden. Mark Sharkey, who was some degree of cousin to Thomas, said that Mr Snowden had told him that he had burned down the Mariners. Lee Haddow spoke to being asked by Mr Snowden to go to Mr Jenning’s house as he had a job for him, which turned out to be the burning down of Mr McGinley’s home (c 15). There were other adminicles of evidence against Mr Snowden, but these various remarks connecting him with the fires must have been the most telling. The multiplicity of events occurring after altercations with Mr Snowden would have provided strong evidence that it was indeed Mr Snowden who had been responsible for the instigation of the crimes.
[12] As already noted, Mr Snowden did not testify at his trial. Thus, to that extent, there was no evidence from him which either denied or explained the many remarks attributed to him. Rather, the defence tactic, which is in no way criticised, was to attempt to discredit the various witnesses; especially Mr McCarthy and Mr Hughes. This was done in the course of what appears to have been robust and detailed cross-examination of those witnesses in relation to: the very many statements which they had each given in the course of repeated interviews by the police; the contradictions in the content of those statements; the impossibility of certain things said, when set against known facts (especially dates and times of incidents); the roles of the witnesses themselves in the criminal activity libelled; and the failure of the witnesses to warn potential victims of the fires, with whom the witnesses were friends. The cross-examination of individual witnesses was measured in hours and, in some instances, days.
[13] The evidence against Mr Jennings was partly of the same character. Thus, for example, Mr McCarthy spoke to him admitting being the attacker of Mr McKinney at Mr Snowden’s instance. He had admitted involvement in the ammonia attack on Mr McGinley (c 14). Mr McCarthy had said that Mr Jennings was involved in the McGinley house fire at least to the extent that he was unable to stop it when asked to do so. Mr Haddow said that he had gone to Mr Jennings’ house, at the instance of Mr Snowden, and was there told by Mr Jennings to set fire to the McGinley house. He was given the means to do it. He said that he was unable to carry out the deed, but there was evidence from Lorraine Murray that he had admitted doing so. Most significant, there was evidence that, in a statement to the police, Mr Jennings had said that, when he had first heard of the Sharkey fire, he had commented “I hope they get the c…t that did it”, which, on one view, showed special knowledge on Mr Jennings’ part that the fire had been deliberately set and by one person.
[14] There was other evidence against Mr Jennings, including an identification of him as his assailant by Mr McKinney (c 10). Mr Hughes spoke to driving Mr Jennings to the locus of the McKinney assault. More important, in relation to the murders (c 22) there was a body of evidence, from a number of civilians, which identified Mr Jennings as the figure shown in CCTV images walking southwards (toward the Clyde) down John Street across its junction with West Princes Street at 4.42am, shortly before the fire was detected. This took it in the direction of an alleyway which led to the Sharkey flat at Scott Court. The figure did not reach a point covered by CCTV beyond the alleyway. It was observed at 5.07am going back across the junction, at a time shortly after the fire must have been lit. These identifications were of varying certainty and depended primarily on Mr Jennings’ gait. The positivity reached a zenith with the evidence of DC Jennifer Bell, who had not previously known Mr Jennings but who was resolute in identifying him, having viewed the CCTV images and later coincidentally having seen him walking at Govan Police Office.
[15] Again, the defence tactic was, in relation to both the alleged admissions and the identifications, not to contradict the evidence by adducing Mr Jennings in response but to test the evidence by the use of similar cross-examination to that deployed on behalf of Mr Snowden. There was a witness statement from Mr Jennings in which he denied being the person shown in the CCTV images. Otherwise, there was particular focus on the poor quality of the images and upon the unreliability of eye-witness identification evidence as a generality.
Statements by Mr Snowden – Objection by Mr Jennings
[16] Objection was timeously taken to the admission of evidence of the statement allegedly made by Mr Snowden to Mr McCarthy in the Clyde Bar that he had got Mr Jennings to do the Cruin. Objection was also taken to the admission of a statement allegedly made by Mr Snowden in connection with fire-raisings at the Station Bar in August 2009 and January 2010. These had been libelled in charges 4 and 5. This time the statement had allegedly been made by Mr Snowden to Mr Hughes and in a different pub. Mr Snowden was said to have been raging and had said that “Rab had made a c..t of it twice”.
[17] The libel in respect of the Cruin was withdrawn against Mr Jennings at the close of the Crown case. The trial judge sustained a no case to answer submission regarding charges 4 and 5.
Eye witness evidence – Objection by the Crown
[18] Mr Jennings lodged a report from Allan McNeill, a senior lecturer in psychology at Glasgow Caledonian University, dated 17 May 2013. Dr McNeill has a particular interest in “area face processing with a focus on forensic identification.” He is said to offer “expertise on the accuracy of eyewitness identification to the legal profession in Scotland”. He has published and lectured extensively on the subject. His report dealt with the “malleability of memory”; that is to say the influence on memory of events occurring after an incident. It asserted that there was a general but erroneous assumption that memories are reliable and remain largely unchanged over time. In fact, the report stated, memories are “readily influenced by post-event information, and are very susceptible to suggestions”. The report emphasised that “It is very well known that eyewitness identifications can be highly unreliable” and cited instances of this occurring. It then went on to deal with the particular circumstances of the identification of Mr Jennings in the CCTV images. It listed a number of factors which might be considered in assessing the accuracy of the identifications, including the various factors already described, before reaching the conclusion that the evidence ought to be treated “with caution”.
[19] On 12 July 2013, when Mr Jennings attempted to adduce Dr McNeill as a witness during the defence case, the advocate depute intimated (as he had earlier) that he would object to evidence concerning the content of the report. After hearing parties, the trial judge advised that he would sustain the objection. He did so on the basis that the report contained material of a general kind, which, in terms of Gage v HM Advocate 2012 SCCR 161 (LJC (Gill) at para [22]), was inadmissible.
The charge
[20] The Crown speech to the jury took up the equivalent of a court day (over Tuesday 16 and Wednesday 17 July 2013). Early on in his address, the advocate depute told the jury that he was not going to refer to all of the evidence, partly because that would take up an inordinate amount of time and was, in any event, unnecessary. He stated that he was going to refer only to parts of the evidence; stressing that “All the evidence is there for you to consider” and that his failure to mention something specifically did not mean that the jury should consider either that he was not relying on it or that it was not important.
[21] The trial judge started his charge on Monday 22 July; defence speeches having commenced on Wednesday 17 and concluded on Friday 19 July. Almost at the very outset of his charge, the trial judge gave the jury a general direction that, when mentioning the evidence, he was doing so for the limited purpose of illustration, “perhaps” to remind the jury of “where the evidence was”, to help the jury to “form a picture of the various witnesses, and to bring it all together for” them. He stressed that, if the jury felt that he had formed a view of the case, they should ignore that feeling, because his view did not matter. He continued, in relatively standard form, as follows:
“If I… refer to a piece of evidence it does not mean you should necessarily think it significant just because I have said something about it. Obviously I can’t refer to all the evidence, and neither could counsel. It may well be that the most important piece of evidence, as far as you’re concerned, is not mentioned in any of the speeches at all. It’s entirely a matter for your judgment.”
The point about the most important piece of evidence was presumably intended as a rhetorical device, designed to emphasise that it is the jury’s own view of the evidence which alone ultimately matters.
[22] Immediately after a brief adjournment in the course of his directions on the legal aspects of the case, the trial judge turned to the evidence. He stated that he would look “briefly at some aspects of the evidence” in order to give the jury directions on what the jury could, and could not, do with it. His stated intention thereafter was to “Look at some of the evidence… to try and draw the threads together”. He emphasised again that he was conscious that he could not look at all of the evidence and that, if he had missed something, the jury should bear with him as he was sure that the jury would have a note of it in any event because, as he observed, some jurors had been taking careful notes.
[23] The trial judge gave the jury general directions on the different types of the evidence. He dealt with the credibility and reliability of the testimony of witnesses who themselves were involved as perpetrators of the crimes. He thus made specific reference to the famous case of Burke and Hare (Burke and McDougall 1828 Syme 345). He set out the standard directions on eye witness identification. He told the jury that “powers of observation could be fallible” and that errors could occur with identification. Mistakes had been made in the past and these had to be guarded against. The jury were advised that they had to “take special care in assessing this sort of evidence”. The judge reminded the jury that some of the gait identifications had been made after observing just 4 seconds of CCTV images. Generally, he cautioned the jury to be careful in their assessment of this aspect of the case and when weighing the other eye witness identifications, when set against what had occurred at VIPER identification parades. In all of this, the judge drew a distinction between identifications of persons previously known to witnesses and those of strangers.
[24] Turning to statements, the trial judge gave the standard general directions on the content of previous statements of witnesses being hearsay and not normally admissible as proof of fact. He made cautionary remarks on the use of admissible hearsay as such proof. He illustrated the method by which previous inconsistent statements could be used to undermine the credibility or reliability of witnesses by making specific reference to the many statements given to the police by Mr Hughes. He moved on to tell the jury about the effect of a witness adopting a statement as true.
[25] The trial judge then dealt with statements made by the accused and said this:
“Where… what was said to have been said were part of the events, such as instructions or threats, then they are pieces of circumstantial evidence you can take account of. Where what is said by one accused was said outwith the presence of the co-accused… that may be evidence depending on what you make of it for or against the person who said it. But it is not evidence in the case of the co-accused who wasn’t present.”
The judge specifically referred to the evidence from Mr McCarthy about Mr Snowden saying to Mr Jennings “You know what to do” in relation to the Mariners. He directed the jury that, because they did not know what Mr Jennings’ reaction to that instruction had been, the evidence could not be used against Mr Jennings. Immediately after the judge’s reference to the comment by Mr Snowden in the Clyde Bar that he had got Mr Jennings to do the Cruin, the judge said “again not evidence against Mr Jennings”.
[26] Having completed his directions on different types of evidence, the trial judge reiterated that he would look “briefly… at some of the evidence in the case”. He said that his purpose in embarking on this expedition was “to try and remind you of who the witnesses were and to try… to draw it together for you”. He repeated that he would not be able to go into “all the detail” and would miss out a lot of the answers and the nuances. He was, as he put it:
“simply hoping to remind you who the various people were so that you can form your assessment of the evidence, and just to remind you how it came out, and the order it came out… And perhaps because a number of witnesses spoke to a number of charges… what I’m trying to do is to take out the bits of the evidence of a witness and put it into the context of a particular charge.”
[27] That having been said, the trial judge proceeded to look at each charge in turn and to deal with the evidence, or at least some of it, as applicable to each charge. This was consistent with his direction on the obligation of the jury to return separate verdicts on each charge in respect of each accused. In that context, the judge appears to have been doing what he had said he was going to do on several occasions, which was to try and draw the threads together in relation to each accused on each charge.
[28] The method adopted by the trial judge was to highlight the testimony of the witnesses in so far as relevant to each charge; that is to say the evidence which was capable of pointing to the guilt of the particular accused. However, peppered throughout his directions are references to the criticisms of this testimony which were made by the defence. Thus, for example, in relation to Kingspoint (c 1) he referred to the particular parts of the testimony of Mr McCarthy and Mr Hughes, whilst at the same time drawing the jury’s attention to there being inconsistencies in the former’s statements and to the impossibility of certain facts spoken to by the latter. On the Garth Inn, he again referred to the testimony of Mr McCarthy, but re-iterated the defence comment that almost everything that Mr McCarthy had said had had to be prompted by looking at his police statements. He mentioned Mr Hughes’ testimony, whilst at the same time repeating the question of why, if Mr Hughes had known about the prospect of a fire in advance, he had not told his friend, a Mr Skinner, who lived above the Inn. As the judge put it to the jury “…you’ll remember quite a lot was made about that”. Equally, when he came to mention the evidence about the tool left on the windowsill, the judge said “There was a great deal of cross, you’ll remember, about the timing of that revelation and why he hadn’t mentioned it to the police…”.
[29] Turning to The Steep, the trial judge spoke of the alleged comment by Mr Snowden to Mr Fraser, but drew the jury’s attention to the additional remark from Mr Snowden that the fire had nothing to do with him as he had been away in Liverpool. Whilst again referring to Mr Hughes’ testimony, he pointed to the criticism that Mr Hughes had given inconsistent accounts over the course of 23 police interviews. He also mentioned a witness, namely David Prophet, who had overheard Mr Hughes mentioning that he had done the fire for Mr Snowden and Mr Snowden replying “What the f...k are you talking about” (ie denying that very thing). The judge directed the jury, in relation to Mr Hughes’ testimony, that “you’ll remember the cross-examination of him and the comments by Counsel. He’s a very crucial witness, which I’m sure you’ve managed to work out”.
[30] A similar pattern was adopted by the trial judge in relation to evidence relating to the assaults on Mr McKinney and Mr McGinley. On the fire at the Mariners, whilst the judge mentioned Mr Snowden’s alleged admission to Mark Sharkey, he reminded the jury that this had not appeared in Mr Sharkey’s statements to the police. In relation to the fire at the McGinley home, the judge referred to Mr McCarthy’s evidence about being aware of the prospect in advance yet, as the judge said to the jury, he had done nothing to stop it despite being on good terms with the McGinleys. On the Cruin, the judge returned to repeat his cautionary words about accepting the word of persons who appeared to be socii criminis. The judge referred to Mr McCarthy’s evidence that Mr Snowden had admitted setting fire to the Cruin. However, he reminded the jury that counsel had pointed out the “problems with this” and the timing of the Victoria Halls incident, alluding to it as an event which had already happened (see supra).
[31] When it came to the murder charge, the trial judge began by referring to Mr McCarthy’s testimony about Mr Snowden having “something else in mind” for Mr Sharkey, other than shooting him. He then commented that this had apparently been months before the fire and that “you’ll remember that he was cross-examined about whether this conversation was in a car or a pub. It seemed to vary when he was asked about it”. Having referred to the alleged statement by Mr Snowden to Mr McCarthy after the fire that “It all went wrong”, the judge said:
“… you’ll remember the cross-examination of him, about the lies he told and the number of police statements he had given and so on, and about his own involvement. And remember Counsel’s comments to you during the course of their addresses.”
When dealing with the alleged admission to Mr Fraser (“He got what he deserved”) in the Ruby pub, where Mr Snowden was being repaid the money he had loaned to Mr Fraser, the judge said “But you will recall the cross-examination about the precise timing of all of this, and reference was made to the telephone communications and so on”. He continued with references to Mr Fraser having the contradictions in his police statements put to him and to Mr Fraser being accused of lying (presumably by counsel in cross-examination). When dealing with Mr Hughes’ testimony on Mr Snowden threatening Mr Sharkey, the judge said “And you remember the cross-examination about that”. On Mr Hughes’ evidence on the timings of admissions, the trial judge was more expansive as follows:
“Mr Hughes spoke of the Victoria Halls event and Mr Snowden saying he would get Mr Sharkey “done in” at it... You remember the points made about the problems with the timing of the Victoria Halls episode and The Cruin admissions being all wrong.”
The judge made mention of witnesses who had testified to Mr Snowden denying his involvement in the Sharkey fire.
[32] When dealing with the identifications of Mr Jennings from his gait, the trial judge referred to the cross-examination of the witnesses and specifically to the effect of rumour on the witnesses’ recollections. He described the falling percentages relative to the certainty of the identifications.
[33] Generally, the trial judge mentioned a number of witnesses, although not all of them, and made reference to the broad areas of their testimony, often stating something which had emerged in cross-examination. He treated the witnesses called by the defence in exactly the same way as he dealt with those led by the prosecution. Indeed he did not mention whether a particular witness had been called by one party or another. The judge then returned to his purpose in referring to the evidence as follows:
“… if I can just remind you that what I’m trying to do is … give you a very brief survey of the evidence as I’ve noted it.
… I’m not trying to set out all the evidence to any extent. I haven’t set out [?all] the answers to the questions in chief and I haven’t set out all the answers to questions in cross. I’m just trying to give you the flavour of it … of what the evidence was of particular witnesses, both in chief and in cross. If you feel I’ve slanted it anywhere towards one side or the other, that’s not my intention and you … must apply your own judgment to the evidence and don’t go by anything which I’ve had to say about it.”
He returned to repeat what he had said about the evidence of accomplices and reminded the jury of certain general points put to the principal witnesses in cross-examination, stating that he had not attempted to look at every point put “because I couldn’t possibly go into all the statements and say where and to what extent they differ from the evidence. These are matters for your recollection alone”.
[34] The trial judge turned to consider the evidence of the witnesses identifying the figure walking on John Street. He dealt with the fact that some had heard rumours about the involvement of Mr Jennings in advance of their identifications of his gait. He reminded the jury of the cross-examination which, in some cases, extracted from witnesses that their identifications had been influenced by the rumours. Some witnesses had not made any connection between the figure and Mr Jennings until his name had been mentioned. The judge made reference to witnesses who had viewed the footage and had not made the connection or who had done so, they said, after suggestions had been made to them by the police. He commented on the testimony of witnesses who had only made identifications months after the event. In relation to the testimony of DC Bell, he reminded the jury of the lack of checks on the precise times displayed on the images from the different cameras and of the possible inconsistencies as a result. In particular, one person identified in the images appeared to be at two places at the same time.
[35] The trial judge dealt fairly extensively with the statements of Mr Jennings concerning his movements on the night of the fire (ie his alibi) and his denial of involvement in the other fire-raisings and assaults. He reminded the jury of evidence which implicated Mr McCarthy in the Mariner, McGinley and Sharkey fires. He referred to evidence which suggested that Mr Jennings did not own a hoodie of the type worn by the figure shown in the CCTV images but that certain other persons on the periphery of the event did. He touched upon the testimony of witnesses who had identified the figure as being someone other than Mr Jennings. He concluded:
“… I’ve said as best I can, a sort of summary of the evidence. But by no means did it cover all the evidence which you’ve heard… You have to take account of all the evidence, everything, every question, every single answer as far as you can remember, and everything said by counsel… in assessing, assisting you to reach your verdict.
…You’ve heard… excellent speeches… But it may be that the evidence which you think is important has not been mentioned by anybody.”
Grounds of Appeal and Submissions
(a) Mr Snowden
[36] Mr Snowden lodged an extremely detailed Note of Appeal which, unusually, surpassed, in length, the Case and Argument subsequently presented as containing the submissions developed in its support. Despite the stream of material contained in the detail of the Note, some of which appeared to be of peripheral significance and some being little more than comment, the essence of the ground of appeal can be extracted from the Note as follows:
“… having chosen to rehearse the evidence for the jury, the … trial judge was bound to do this in a fair and balanced way, representing both the position of the Crown and the defence.
… while the … judge rehearsed the Crown case to the jury and explained the basis for which the prosecution sought to persuade the jury to return a verdict of guilty in respect of each charge, he failed to remind the jury of a number of important aspects of the defence case”.
What then follows is an extensive catalogue, which is said not to be exhaustive, of these “aspects”, which the trial judge failed to mention but which are illustrative of the types of evidence upon which the defence sought to rely.
[37] The point put shortly was that, although there was no intention on the part of the trial judge to influence the jury towards one verdict or another, having decided to embark upon an exploration of the evidence, he had to do so in a manner which ensured a fair balance between the Crown case and the defence criticisms of it. He had failed to achieve this. Despite the admonitions to the jury about their views and recollections being paramount, there was a danger that, by mentioning a particular piece of evidence, and not mentioning another, the jury would assume that the testimony referred to was important and that that omitted from the narrative was not. The judge, in some areas, had mentioned evidence which the Crown had not referred to. He had also, too often, only drawn the jury’s attention to the defence position by stating that they would remember what the defence had had to say about it or that the jury would recall the nature of the cross-examination. The judge had adopted this shorthand form of reference because, perhaps, he had realised that, if he did refer to the substance of the defence criticisms, he would have required to address the jury for days; a fact which he may only have appreciated once he had started referring to the evidence during the charge.
[38] The catalogue is in numerical form following the sequence of the charges. In submissions, a slightly different tack was adopted which concentrated on matters which the Crown had not expressly relied upon, but which the trial judge had addressed in his charge. These included, for example, the reference to the alleged text sent to Mr Hughes by Mr Snowden about The Steep. The main complaint, however, was the failure to mention certain lines of cross-examination adopted, especially in relation to both Mr McCarthy and Mr Hughes. For example, the detail of Mr Hughes’ many statements and their inconsistencies had not been mentioned or illustrated for the jury. The possibility of inaccuracy caused by the antiquity of some of Mr Fraser’s statements had not been specifically drawn to the jury’s attention. On the McKinney assault, there had again been problems with the use of Mr Fraser’s statements. There had been no reference by the judge to Mr McCarthy’s description of his own statements to the police as a “pile of crap”. Mr Hughes had admitted telling lies under oath. General references to there having been cross-examination about this had been inadequate to highlight this fact.
[39] In relation to the Mariners, the Advocate Depute had stated that the case was “pretty thin”. He had mentioned some of the evidence of Mr McCarthy and Mr Hughes, but he had not, as the judge did, founded upon Mr McCarthy’s testimony that Mr Snowden had specifically said that he wanted the Mariners burnt down or that of Mr Hughes that he had heard Mr Snowden make reference to “scousers”. Although the judge had mentioned that Mark Sharkey had said that Mr Snowden had admitted burning down the Mariners, this had not been mentioned in his statements to the police. As evidence it was said to be “so incredible that even the Crown did not even mention it in their speech”. The defence case had been that Mark Sharkey and Mr McCarthy had burnt down the Mariners, thus creating a break in any alleged pattern of behaviour on the part of Mr Snowden. Detailed criticisms of a similar nature were made in the Note and in submissions about the McGinley assaults and house fire, the context and impact of which were not particularly easy to grasp. The main complaint about the judge’s treatment of the Cruin related to the impossibility of the timing of the alleged admission by Mr Snowden relative to the Victoria Halls event, although there was again mention of an admission by Mr McCarthy about the quality of his testimony.
[40] The criticisms of the trial judge’s treatment of the evidence on the murder charge, as narrated in the Note of Appeal, are framed in four closely typed pages containing detailed descriptions of the evidence of some of the witnesses about the goings on in the extended Sharkey family, their relations with Mr McCarthy and his relations with Mr Snowden. There is repetition of the general flaws said to be evident in Mr McCarthy’s testimony. The Note contains comment on the evidence of Mr McCarthy based upon an in-depth analysis of a variety of other factors spoken to by other witnesses of the type which might be expected to be found in a defence speech to a jury. The content of the Note, which was adopted in submissions, refers to potential defects in the alibi of Mark Sharkey. It refers to sundry drugs transactions. Examples are given of where it is contended that there were demonstrable lies in the testimony of the witnesses incriminating Mr Snowden. It is clear that many of these points were made the subject of cross-examination by the defence at the trial. The submission was that it is not enough simply to refer to the existence of cross, if its substance is not specified or at least illustrated in the charge itself.
[41] It was said en passant that counsel for Mr Snowden’s normal approach in addressing a jury is to do so by way of a response to the case as presented to the jury in the Crown speech. However, it was not submitted that counsel’s approach would have differed if he had been aware of what the trial judge was going to say thereafter.
(b) Mr Jennings
[42] Four points were advanced. The first (ground of appeal 4) was the issue of balance, for which Mr Snowdon’s submissions were adopted. It was said that the trial judge had summarised the Crown case between pages 90 and 180 of the transcription of his charge, without balancing this with the challenges made by the defence or by including references to contradictory defence evidence. The judge had summarised the defence evidence between pages 180 and 188. The judge should have included the defence evidence in his summaries relative to each charge and should have balanced the prominence and volume of the Crown case by reference to the flaws in the identification evidence. It was pointed out that, in relation to the testimony of DC Bell, which was important if not critical evidence against Mr Jennings, the judge had said:
“[Counsel for Mr Jennings] has gone into her evidence in some detail towards the end of last week, and criticised it and I will simply leave that to you.”
[43] The second contention (ground 2) was that the trial judge had erred in repelling an objection to the leading of the statements made by Mr Snowden, which connected Mr Jennings to the fires at the Station Bar and the Cruin, outwith Mr Snowden’s presence. Whilst it was accepted that the statements were admissible as a matter of law in the context of proof of concert (Beacom v HM Advocate 2002 SCCR 33), they ought not to have been admitted because they were of no probative value. The statements could have been proved without reference to the name “Rab” (McFadden v HM Advocate 2009 SCCR 902). The statements were “highly prejudicial” to the appellant. This prejudice could not have been cured by the trial judge’s directions. Notwithstanding the sustaining of the no case to answer submission relative to the Station Bar charges, the evidence would have been available to the jury in considering the remaining charges; particularly relative to proof of a pattern of behaviour whereby Mr Snowden instructed Mr Jennings to carry out criminal acts, including fires.
[44] The third point (ground 3) was that the trial judge had erred in sustaining the Crown’s objection to evidence of the content of Dr McNeill’s report on eye witness identification. Many of the witnesses who purported to identify Mr Jennings from the CCTV images had done so without realising that, whereas 4 seconds of the images, which had been broadcast in the television programme Crimewatch, were real, the rest had been reconstruction. The voice-over of the programme had stated that the figure shown walking south was the same as the one later seen going north, but that was not accepted as necessarily so. The witnesses had identified Mr Jennings, having heard his name as a person rumoured to have been involved. In these circumstances, the expert evidence ought to have been admitted as being no different from that of other skilled witnesses who had, for example, given evidence on: the reliability of testimony from children under specialist interviewing techniques (E v HM Advocate 2002 JC 215); or whether a person was a pathological liar (McBrearty v HM Advocate 2004 JC 122); or the susceptibility of persons being interviewed by the police (Gilmour v HM Advocate 2007 SCCR 417). It was accepted that the test for the admissibility of expert evidence was whether it was “necessary” for the proper resolution of the dispute (Gage v HM Advocate 2012 SCCR 161). Where it related to the credibility of testimony, there had to be some special feature which involved scientific knowledge with which ordinary persons were not likely to be familiar (HMA v A 2005 SCCR 593, Lord Macphail at para [12] under reference to Dickson: Evidence (3rd ed) para 397). That test had been met here. The expert evidence would have provided a context for the jury in which to interpret and assess the identification evidence.
[45] The final submission (ground 1) was that the trial judge had erred in repelling a no case to answer submission in respect of the murder charge. The Crown case had been based upon the testimony of DC Bell concerning what could be seen on the CCTV images. This evidence had not been reliable because of the time recording errors (supra), the limited coverage of the cameras and the poor quality of the images. The witnesses who purported to identify the figure in the images as Mr Jennings had thereby only put him in the area and not in the immediate vicinity of the fire. There were others in that area too. Applying the test for the sufficiency of circumstantial evidence in Megrahi v HM Advocate 2002 JC 99, the evidence was not enough to prove that Mr Jennings had been the actor.
(c) Crown
[46] The legal principles relative to the need for balance in a charge were set out in Shepherd v HM Advocate 1996 SCCR 679. There was no requirement for the trial judge to achieve a precise balance (O’Donnell v HM Advocate [2014] HCJAC 43, Lord Eassie at para [27]). The Crown speech to the jury had not attempted to provide a resumé of all the evidence upon which the Crown might rely. It had rather been directed towards identifying the different sources of evidence which could support a conviction. The Crown position had been that Messrs McCarthy, Hughes and others were close associates of Mr Snowden. There had been multiple statements given by them to the police. There had been much contradictory material in them. The cross-examination had been lengthy and dramatic. The jury would have recalled the cross and the strong efforts to undermine the witnesses. There was no doubt about what the issues of fact were.
[47] There had been no suggestion that what the trial judge had said about the evidence had been either inaccurate or misleading. He had told the jury that he had formed no view upon the evidence and stressed that it was what they regarded as important that counted. The jury had been given notebooks at the start of the trial. Some members of the jury had taken copious notes and had requested more notebooks for this purpose during the trial. What the judge had been doing was telling the jury not so much the detail of what the testimony had amounted to but where to find the evidence on the particular charges. This was in the context of the drama of the trial which was fresh in the jury’s collective memory. It was not correct to assert that the judge had summarised the Crown case. He had not mentioned every witness. Ultimately the jury’s awareness of the defence position had been reflected in their discerning verdict.
[48] The evidence had been sufficient to convict Mr Jennings of the murders even without the Crown establishing a pattern of behaviour, which the Crown had submitted was an important part of the case. There had been evidence that Mr Jennings was the figure in the CCTV images. The timings did not matter since the figure was captured on the same camera, which covered the route most likely to have been taken by someone trying to avoid being captured on different cameras.
[49] The Crown were not asked to address the remaining aspects of the appeal.
Decision
(a) Balance
[50] Where a trial judge delves into the evidence, for reasons other than to illustrate specific points of law upon which he requires to direct the jury, it is incumbent upon him to do so in a balanced manner. This means that, if he is setting out the testimony upon which the jury would be entitled to base a conviction, he must “fairly put the defence case to the jury” (Scott v HM Advocate 1946 JC 90, Lord Carmont at 96). That does not mean that he requires to rehearse all the points which were made, or might have been made, in the defence speech. It does mean that the “substance of the defence” must be presented to the jury (ibid, Lord Moncrieff at 97).
[51] A contention that a miscarriage of justice has occurred, which is supported only by pointing to a judge’s failure to mention a particular point or points raised by the defence, will not, of itself, suffice. The criticism must be a substantial one of imbalance going to the whole “tenor” or “purport” of the charge (ibid, Lord Carmont at 95, Lord Moncrieff at 97, LJG (Normand) at 98). Put simply, an appellant will require to demonstrate that, looking at the charge as a whole, its tenor was unbalanced in the sense of demonstrably favouring the Crown upon a contentious issue of fact raised during the trial.
[52] In assessing that matter, as was said by the Lord Justice General (Cooper) in Withers v HM Advocate 1947 JC 109 (at 115):
“… it is illegitimate to fasten upon isolated passages of a Judge’s charge in order to subject them to a meticulous examination as if the jury had not heard the evidence and the submissions of counsel as to its effect. [The court’s] attention must be directed to the general tenor and purport of the charge, with a view to determining whether anything has been said or left unsaid which might be regarded as capable of misleading the jury or diverting them from the proper exercise of their functions” (followed in Afzal v HM Advocate [2013] HCJAC 103, Lord Brodie, delivering the Opinion of the Court at para [13]).
The question then is one of whether, looking at the whole tenor or purport of this charge, the trial judge said, or failed to say, something which might have had the result of misleading the jury or diverting them from their task.
[53] The answer to that question is in the negative. The whole tenor of this charge was one of balance. It is important in that regard to note, first, that it was not suggested either that the purpose of the judge in saying what he did was with a view to securing a conviction against the appellants or one or other of them. Secondly, it was not contended that the judge had made any material error in his description of the evidence. This latter fact is worthy of remark, given the length of the trial and the judge’s many references to the testimony. In such circumstances, it can hardly be maintained that the judge misled the jury.
[54] The trial judge stressed several times that the assessment of the evidence was for the jury to carry out, taking into account all of the testimony that they had heard and not just the parts which had been mentioned by him or indeed counsel. He emphasised his neutrality and made it clear that what was and was not important was for the jury to determine. It is correct to say that, had the judge nevertheless proceeded to deliver a manifestly biased charge, such general directions may not have been regarded as sufficient to cure a perceived miscarriage of justice. However, the content of these directions on the different functions of judge and jury must be given some meaning. That must be that this jury would have been well aware that the facts were for them to determine upon their own assessment of the evidence as a whole. They would understand that they were not bound by the judge’s description of the testimony of a particular witness or his failure to mention a particular aspect of the evidence.
[55] The trial judge gave several admonitory directions in relation to particular categories of evidence. These included the need to be wary of the testimony of associates in crime, the fallibility of eye witness identification, the dangers of dock identification, the potential for rumour to affect memory, the limited value of primary hearsay and the utility of comparing prior inconsistent statements with the testimony in the court room. Thereafter, in relation to almost every individual charge, whilst describing where to find the evidence which the jury might view as pointing to the guilt of the appellants, or one or other of them, the judge made reference to the defence criticisms of it. In particular, he made repeated references to the significance of the witnesses having to be referred to their prior statements rather than giving evidence from direct recall. He referred to the inconsistencies which existed between different statements given by the same witness. He reminded the jury that some of the witnesses were speaking to the prospect of fires in the vicinity of their friends’ houses in circumstances where no prior warnings had been given to these friends. When referring to evidence of an admission relative to a particular event, the judge mentioned denials given in relation to the same event. In relation to certain dock identifications, he pointed to the witnesses’ failure to do so at VIPER parades. If a passage of apparently important testimony was absent from a witness’s police statement, he pointed that out. He made reference to the evidence founded upon by the defence which incriminated others, including Thomas Sharkey and Mr McCarthy. He told the jury on several specific occasions that they were being asked to rely on the testimony of persons who “could easily have found themselves in the dock”. He mentioned apparent inconsistencies in the testimony, including those arising from the timing of the Victoria Halls event when compared with that of the Cruin inferno.
[56] Set against that background, the court is quite unable to sustain a submission of lack of balance. No doubt the trial judge did not mention every point made by the defence in the speeches made on behalf of the appellants. It would not have been appropriate to do so, partly because such an exercise in itself may have been open to criticism as tarnishing the power of the speeches within the dramatic context of the trial as it developed live. Each case must depend upon its own facts and circumstances. The defence in this case was not so much a positive one based on evidence that others had committed the crimes (although there were some positive aspects). Rather, it was an attack on the credibility and reliability of the witnesses adduced by the Crown. It would have been sufficient for the judge to have mentioned the general areas in which criticisms of the Crown case were being levelled. This judge went further than this and gave examples relative to several distinct charges of how the criticisms operated. He also referred to some of the evidence which pointed away from the appellants’ involvement. This is not to say that such an approach is either needed or desirable in every case. It may not be in the vast majority of relatively short jury trials. It was certainly sufficient in this trial.
[57] The trial judge’s all encompassing references to the cross-examination or the points made by the defence have been subjected to scrutiny. These references are said to have been too vague and it is contended that the judge ought to have spelled out the nature of the cross-examination and what the points had actually been. However, that type of approach would fall foul of certain obvious criticisms. It would appear over condescending to a jury which has actually sat through the trial and heard the cross-examination and the defence speeches. It is not to be assumed that juries suffer from collective, rapid onset, short-term memory loss. They can be reasonably be expected to recall the nature of cross-examination or the defence position on a particular point when the judge reminds them, as he did in this case, not of its detail but of its existence. What the judge was doing was not so much summarising the evidence but trying to tell the jury about where to find the testimony, which many of them had been noting, in respect of each charge. It was quite in order, in that regard, to create a balance simply by reminding the jury that certain evidence had, as a generality, been the subject of criticism in cross and/or submission.
[58] It is, once again, necessary to revert to the words of the Lord Justice Clerk (Thomson) in McPhelim v HM Advocate 1960 JC 17. There, Lord Carmont had charged the jury in what must have been substantially less than 5 minutes (see pp 18-19). The charge is clear, concise and devoid of condescension and statements of the obvious. It assumes a collective intelligence on the part of the jury and focuses solely on the live issue at trial. It makes no specific reference, for example, to legal concepts such as onus of proof or corroboration. It is perhaps now only of historic interest to note that the Lord Justice Clerk would have endorsed the use of an even shorter charge, which he sets out in his Opinion.
[59] The Lord Justice Clerk explained that the feel and atmosphere of a trial cannot be recaptured upon the “drab record” of the proceedings. He continued (at 21):
“A Court of Appeal must therefore be constantly on its guard against failing to appreciate what were the vital issues – the matters to which those actively engaged in the trial were directing their attention … Paradoxically enough, a Court of Appeal is quite as much in danger of getting the case out of focus as is the Judge who conducted the trial. For that reason, it is [the court’s] duty to view with confidence and charity the course taken by an experienced Judge in charging a jury. If a charge is to be a good charge, it ought to be one addressed to the fifteen people in the jury-box, and not to the Court of Appeal. A charge, which meticulously covers every theoretical aspect, may be so complicated that the jury’s capacity to appreciate what it is being told may be blunted long before the real matters with which it has to deal are reached. On the other hand, a vital and effective charge which brings the relevant issues squarely before the jury may on subsequent analysis be found to have technical weaknesses. No hard and fast rule can be laid down.”
[60] In the present case, reading the “drab record” of the charge does convey a feeling that this very experienced trial judge was indeed communicating with the jury. He was speaking to them in plain language; yet not patronising them with repetition of what they would already have well understood to be the issues in the trial, as dealt with by the advocates in their speeches. The court is entirely satisfied that the judge achieved the appropriate balance and this ground of appeal in respect of both appellants is rejected.
(b) Statements outwith the presence of an accused
[61] It is of some importance to recognise that the Scots law of criminal evidence is itself intended as a code which has been built upon the wisdom of the ages with a view to achieving what is thought to be fair in the context of a trial. It is not legitimate to attempt to circumvent the law by submitting in bold terms that it is “unfair”; where that unfairness does not fall below the minimum standards required by Article 6 of the European Convention. In this area, whether a statement by a co-accused can be used as evidence against another accused is not a matter governed by Article 6, at least in the circumstances which prevail here where the statement was only a potential adminicle and not the sole or decisive evidence against the absent party. It is the domestic law which prohibits the use of such statements as positive proof against that party. However, it does so subject to other rules, including those of admissibility, which govern the trial process.
[62] Where two persons are charged with the same offence, it is generally thought convenient to try them together. The court may be asked to separate the trials on the basis of prospective unfairness (Gemmell and McFadyen v MacNiven 1928 JC 5, LJG (Clyde) at 8). That was not done here and, in any event, such an application would almost certainly have been refused given the inter-relationship of the accused relative to the charges. That being so, the normal rules relative to the admission of statements by accused persons must apply. These permit the Crown to adduce evidence of such statements where they implicate the maker. That is what occurred in this case.
[63] The evidence admitted was that Mr Snowden had said to Mr McCarthy that he had got Mr Jennings to do the Cruin. As a matter of law, there is nothing objectionable about admitting that evidence given that it was a plain admission of instructing Mr Jennings to carry out the crime. It would have been particularly relevant had it been proved that Mr Jennings had done so. As it happened, there was, in accordance with the rule set out above concerning statements outwith a person’s presence, insufficient evidence upon which to convict Mr Jennings of this charge and he was acquitted following the Crown’s withdrawal of the libel. The rule thus operated as it was intended to do. The statement was admissible at the trial in the case against Mr Snowden, the person who made it. It was not competent evidence against Mr Jennings, and he was accordingly acquitted.
[64] Identical considerations apply in relation to the statement allegedly made by Mr Snowden in connection with two fire-raisings at the Station Bar that “Rab had made a c..t of it twice”. This was admissible as evidence against Mr Snowden but not competent as proof in the case against Mr Jennings.
[65] Given that Mr Jennings was acquitted of the charges to which the admissions related, it is difficult to see how a miscarriage of justice can be said to have occurred. The argument that the jury might have used this evidence in some way to influence their verdicts on the remaining charges is entirely speculative. It would also assume that the jury had ignored the trial judge’s clear and repeated direction that evidence of a statement from an accused is not available to prove the case against a co-accused where it is made outwith his presence and there is no proof of reaction (see Beacom v HM Advocate 2002 SCCR 33, Lord Clarke at para [10]). This ground of appeal must also be rejected.
[66] It is worth remarking that the jury’s acquittal of Mr Jennings on the Mariners’ charge suggests that they did indeed follow the judge’s direction on statements. The judge had told them that they could not take into account, as evidence against Mr Jennings, the testimony of Mr McCarthy, that he had been present when Mr Snowden had told him (Mr Jennings) to burn the Mariners, because there was no evidence of Mr Jennings’ reaction to the instruction. This evidence did not, of course, relate to a statement made by Mr Snowden after the event. It was primary, and thus admissible, hearsay and was thus competent evidence that an instruction had been given by Mr Snowden to Mr Jennings to burn the pub down. The judge’s direction on this matter may well have been an error, but it was one which was in favour of Mr Jennings and may well have prompted the acquittal on this charge (c 11)
(c) Expert evidence of identification
[67] It is surprising that leave to appeal was granted upon this ground. The issue raised was conclusively determined in Gage v HM Advocate 2012 SCCR 161. The appellant in Gage had sought to do almost exactly the same thing as was attempted here, by adducing a psychologist on the faults said to be prevalent in identification procedures. This attempt was firmly rebuffed on the basis that it would usurp the function of the jury in the assessment of reliability and credibility (ibid LJC (Gill) at para [27] et seq). The court considered the same quartet of cases as was cited by the present appellant (Gilmour v HM Advocate 2007 SCCR 417; HMA v A 2005 SCCR 593; McBrearty v HM Advocate 2004 JC 122; E v HM Advocate 2002 JC 215) together with authorities from other jurisdictions. However, it remained steadfastly opposed to any relaxation of the general rule that it was for the jurors to bring their own experiences of life and human affairs to bear in reaching conclusions on the reliability of a particular identification. This was, of course, subject to the “specific and thorough direction” to the jury, that “in certain circumstances such evidence may be unreliable” (Gage v HM Advocate (supra), LJC (Gill) at para [29]). It was stressed that, if the rule were otherwise, psychological evidence of this type would be admissible in most trials where identification was an issue; thereby shifting the focus of the fact finder from an assessment of the evidence of identification itself to the evidence of the expert witness or witnesses. There is no substance in this ground. The trial judge correctly applied the ratio in Gage when sustaining the objection.
(d) Sufficiency of evidence
[68] There was a clear sufficiency of evidence against Mr Jennings on the charge of murder. This was so even in the absence of the positive identification by DC Bell of Mr Jennings as the figure shown in the CCTV images. There is no doubt that there were many legitimate criticisms which might be, and in the event were, laid against the various identifications of the figure which was visible in these images. There were also adverse comments which could and were made about whether it was the same figure walking south and then north on John Street across West Princes Street and whether that figure might have set the fire at Scott Court. These were all matters of weight for the jury to assess. They have no impact upon the sufficiency of the evidence as a matter of law.
[69] Mr Jennings was identified as the figure in the CCTV images as walking southwards at about 4.42am. This would have taken him to the mouth of the alleyway to the locus of the fire at Scott Court. There was evidence that the figure did not progress much beyond the mouth of the alleyway as, if he had done, other cameras would have captured it. The images of the figure going back the way it came at 5.07am were consistent with evidence that the fire was set between those two times. This was particularly damning, but it was not all that might have counted against Mr Jennings. There was his admission that, when the fire had been reported to him, he had said “I hope that they get the c..t that did it”, suggesting special knowledge that the fire had been set deliberately and by one person. This evidence was coupled with that mutually corroborative testimony linking Mr Jennings to Mr Snowden in the earlier, but both recent and similar, fire-raising at the McGinley house. Applying the test for the assessment of circumstantial evidence set out in Megrahi v HM Advocate 2002 JC 99 (LJG (Cullen), delivering the Opinion of the Court, at para [31] et seq), this ground of appeal must also fail.