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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Clarke

Lord Mackay of Drumadoon

Lord Malcolm

[2010] HCJAC 61

Appeal No: XC509/08

OPINION OF THE COURT

delivered by LORD CLARKE

in the reference from Scottish Criminal Cases Review Commission

by

ANDREW CHARLES AFFLECK

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Scott, Q.C., Mitchell; Paterson Bell

Respondent: Clancy Q.C. A.D.; Crown Agent

11 June 2010

[1] On 13 November 2003 at the High Court at Kilmarnock the appellant was convicted by a majority verdict on the following charge:

"(2) on 2 March 2001 at 17 Sanderson Avenue, Irvine, while acting along with others the identity of whom is to the Prosecutor unknown, you did set fire to the house at 17 Sanderson Avenue, Irvine occupied by Diane Docherty, her daughter Ainsley MacDougall, born 19 December 1998, Alexander Parker, all care of Strathclyde Police, Irvine, Anna Teraysa Murray, now deceased, Carrie Marie Murray, then aged 12 years, now deceased, and Amanda Cooper, now deceased, and the fire took effect thereon and this you did wilfully and to the danger of all said occupants and to the danger of Sarah Jane Lindsey Brown and Donald MacDonald McCance, then the occupants of 23 Sanderson Avenue, Irvine and Lesley Anne Scott, Louise Robyn Scott and Amanda Jane Scott, then the occupants of 19 Sanderson Avenue, Irvine, all care of Strathclyde Police, Irvine whereby:-

(a) said Diane Docherty, Ainsley McDougall and Alexander Parker were injured

(b) said Anna Teraysa Murray and Carrie Marie Murray were so severely injured that they died;

and

(c) said Amanda Cooper was so severely injured that she died at the Glasgow Royal Infirmary, Castle Street, Glasgow on 4 May 2001;

and you did thus attempt to murder said Diane Docherty, Ainsley MacDougall and Alexander Parker and you did thus murder said Anna Teraysa Murray, Carrie Marie Murray and Amanda Cooper and you did previously evince malice and ill-will towards said Diane Docherty and in particular on 1 March 2001 attend outside 17 Sanderson Avenue, Irvine and shout and swear".

[2] On 4 December 2003 the appellant was sentenced by Lord Hardie to life imprisonment with a punishment part of 27 years imprisonment. The appellant appealed against conviction and sentence. On 19 May 2005 the Court refused the appellant's appeal against conviction. On 30 August 2006 the Court upheld the appeal against sentence quashing the punishment part of 27 years and substituting a period of 23 years.

[3] On 7 August 2008 the Scottish Criminal Cases Review Commission (hereinafter referred to "the Commission") referred the case to the High Court in terms of Section 194B of the Criminal Procedure (Scotland) Act 1995. On 5 December 2008 the appellant lodged a note of appeal against conviction following on the Commission's referral. In the event, at the hearing of the appeal before this Court two grounds of appeal were argued. The first of these was in the following terms:

"(1) The Crown failed to disclose the outstanding drugs charges of the essential witness Mr Devine. Said failure resulted in the defence being unable to properly prepare and present the case for the appellant, and in the particular circumstances of this case the breach of the appellant's Article 6 right led to a trial which was not fair, and in all the circumstances led to a miscarriage of justice."

The second ground of appeal which was argued was that there had been a miscarriage of justice in respect that the jury returned a verdict which no reasonable jury, properly directed, could have returned in terms of Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995.

[4] The background to the crimes involved in the charge of which the appellant was convicted was as follows. In or about November 2000, John MacDougall, the partner of Diane Docherty and the father of Ainsley MacDougall, was convicted of rape and sentenced to 10 years imprisonment. Following his conviction Diane Docherty maintained her relationship with MacDougall and visited him in prison. Feelings ran high among persons in the neighbourhood, where Diane Docherty lived, about MacDougall's conduct. As a consequence, Diane Docherty was subjected to verbal abuse at her home which was attacked with eggs and flour. The walls of her home were sprayed and her windows broken. The appellant was involved in the verbal abuse of Diane Docherty. There was some evidence, at his trial, that on the night before the fire, which resulted in the charges of which he was convicted, the appellant was among a group of persons who gathered outside Miss Docherty's home.

[5] It was common ground among the appellant's counsel and the Crown that the Crown's case against the appellant as being a person involved in the fire raising of Miss Docherty's home, and the consequent murders of, and causing of injuries to persons sleeping there depended upon the evidence of two witnesses. The first of these was Vera Wilson. She had commenced a relationship with the appellant late in 2001 or early 2002. They lived together at a house at Sinclair Avenue, Irvine. Miss Wilson was aware of rumours circulating about who had been responsible for the fire and was aware that the appellant had originally been charged in connection with it, had then appeared in Court, but had subsequently been released. She occasionally asked the appellant questions about the fire and in particular asked whether he had "done it". Her evidence, at the trial, was that he would get upset and angry when she did this. He would become aggressive and upset and would raise his voice. He denied having been involved in the fire. Miss Wilson continued, on occasions, to ask him questions about the fire because people were saying things to her about it which made her concerned.

[6] In or about March 2002 Miss Wilson again asked the appellant if he had "done it". His behaviour, in response, on this occasion, was different from how he had reacted previously. He did not get angry or upset. He proceeded to say "I did do it". The appellant appeared to be quite calm but his eyes had "watered up". The witness, Wilson, and the appellant had been sharing a bed intermittently but she did not share a bed with him again. She stayed only for one or two days thereafter, at the house at Sanderson Avenue, and then found somewhere else to stay and moved out. Before she did move out there was a further argument between herself and the appellant. In the course of that argument he called her "a grass". She replied "You're a murdering bastard". On the night of his confession to her, the appellant and Miss Wilson had both been under the influence of diazepam and heroin, both being drug addicts.

[7] Miss Wilson did not report what she had heard from the appellant to the police until December 2002. The police had wanted to talk to her about a drugs matter. At a second interview with the police at the local police station, she told the police what the appellant had said to her in March 2002. She gave evidence, at the trial, that she had understood that since a year and a day had elapsed since the appellant had last appeared in Court he could not be charged with involvement in the fire and that was why she had not gone immediately to the police on hearing what he said.

[8] On her second visit to the police station she had signed a written statement in which she told of the appellant's confession. This statement was read over to her in a tape recorded interview. In cross-examination she denied suggestions put to her that the appellant had made no admission of his involvement in the fire to her and was not shaken from her position that such a statement had been made by the appellant.

[9] The other essential witness for the Crown case was Scott Thomas James Devine. The Crown relied on this witness for certain evidence he gave to the effect that, as an eye witness of the events of the morning of the fire, he saw the appellant who he knew well, running away from the fire. This witness admitted, in evidence, that he was a heroin addict and that on the morning of the fire he was under the influence of heroin having last fed his habit the night before. The examination-in-chief of this witness by the Advocate Depute proceeded from an early stage under reference to four separate statements which the witness had given, on different occasions, to the police. In adopting this approach the Advocate Depute, in his questioning, did not always make it clear as to whether he was seeking the witness's agreement that the statement in question had been given by him on the day in question or whether what was recorded in the statement was said by the witness at the time they were given or whether he was now adopting what was said in the statement as being his present position in Court as to what he had seen or not seen on the morning of the fire. It must, however, be noted that no objection was taken by senior counsel for the appellant at the trial as to the approach adopted by the Advocate Depute, nor to any particular line of questioning in that respect, and there is no ground of appeal adverting to any such issue.

[10] The trial Judge, Lord Hardie, in his charge proceeded on the basis that the witness Devine had given direct eye witness evidence of seeing the appellant run from the fire. The highly experienced senior counsel who appeared for the appellant at the trial, did not demur from that being the position. As regards the Advocate Depute referring the witness to statements said to have been given by him, the trial Judge directed the jury in the following terms, at pages 9 to 13 of his charge to them.

"You will recall that witnesses were asked about statements and bits of statements were read out from police - or statements that were supposed to have been made to the police. Now, there has not been any evidence from the police officers that these statements were in fact made, but contents of statements were read to witnesses, and the witness was asked whether he or she accepted that the statement had been made and if so whether the bit that was being read out was true, or more particularly in some cases, the witness was asked whether the statement was made generally, and whether what he told the police was true, and then bits were read out and he or she was asked whether these bits were said by him, and if so whether they were true.

Well, ladies and gentlemen, what I have got to say about this is this: If the witness denied making the statement altogether or said that the statement was made but it wasn't true, then the contents of the statement that were put to him or her cannot be used by you to determine facts in this case. In that situation - that is where the witness denies making the statement, or says 'yes, I did make the statement, but it wasn't true' - in that situation the only relevance of that exchange or piece of evidence is for you to assess to what extent that affects your assessment of the credibility and reliability of the witness, because obviously I can't remember - I don't intend to go into particular witnesses - but obviously if a witness says 'well, yes, I did say something earlier, but it wasn't true' that might affect your assessment of whether they were someone on whom you want to rely.

On the other hand, ladies and gentlemen - on the other hand - if the witness says 'well, yes, I did make a statement, yes it was true, and yes I said that bit that you have just read out to me', then you can take into account as part of the evidence that bit that has been read out, because just like the barman - just like the evidence of the Tam O'Shanter public house, the witness is adopting into his evidence or her evidence that passage from the statement, because he or she is saying 'well, yes, I did say that, and yes it was true', and therefore it is as though the witness had said that from the witness box in the first place.

In other words, passages which were accepted by the witness in the witness box as true become part of that witness's evidence for you to assess in exactly the same way as other pieces of evidence. And you can take those passages into account if you consider them to be credible and reliable pieces of evidence in the determination of your verdict.

Now, I have already said, ladies and gentlemen this exercise was undergone, or undertaken, rather, on more than one occasion in the course of this trial. So in each case when you come to consider a witness where that exercise was gone through - in each case you will want to decide first of all 'which category does this fall into?' Are we into the category of the statement in which the witness says 'well, I didn't make" or 'wasn't true', and therefore doesn't adopt it? - in which case it is not for your consideration in determination of the facts, although it may be relevant in determining credibility and reliability. Or does it fall into the other category where the witness says 'well, yes, I did say that and it was true', in which case it does come into play in your determination of the facts.

So to try to summarise, ladies and gentlemen, what is the evidence, whereas that may have seemed quite a simple question at the beginning, you realise that it means a bit more than simply what has been said from the mouth of the witness. The evidence for your determination of the facts does not include questions by counsel. It does not include the contents of prior statements where the witness does not adopt the contents as part of his or her testimony. It does not include speculation on their part, but it does include the joint minutes of agreement, it does include the oral testimony from the witness box, it does include documentary and any label productions which are being spoken to in evidence, and it does include the contents of prior statements where these have adopted by the witness in the witness box - and that is by the witness who made them."

[11] Senior counsel who appeared for the appellant at the appeal hearing, took the Court through the evidence of the witness Devine in some detail. As has just been noted, in examination-in-chief, a great deal of that evidence arose in response to references to four police statements which the witness had given. The witness accepted that he had given four police statements on different occasions. In the first three of these nothing to incriminate the appellant was recorded. The Advocate Depute proceeded to ask the witness about the fourth statement. He asked him if he had given a fourth statement. The witness agreed that he had and that this had been in July of 2002. After being asked some questions about the statement, without the actual content of the statement being read to him, the witness said that he didn't know what he had said to the police. The Advocate Depute then put the following question to the witness (at page 14 of the transcript of this witness's evidence), "Did you not say, eh, in the course of that statement at Irvine Police Station to a Detective Constable Joseph Ireland, in the course of your statement, 'I saw somebody running away from the fire. And it was Drew Afflec.'" The reply to that question was "No". The statement was then placed before the witness. He accepted that he had signed it. He was then asked (at page 17) "Right. And had you told the police the truth? - Uhh huh." He was asked again did he tell the police the truth. He answered "Yes". With the statement before him he was asked about its contents by the Advocate Depute reading from it. The Advocate Depute then asked the witness to read out the following passage from the police statement. "I have also been talking about it with my girlfriend, Alison Hanvey. And I think it's about time I told everything. I have always told the truth but I left out a wee bit." The passage which the witness was asked to read out continued "I saw somebody running away from the fire. And it was Drew Affleck at the time. I thought I would have got done in by the Affleck family so I didn't say. When, when it came out that Anna Teraysa and the wee sister had died, I was even more frightened to say. The reason I am telling you now is that I got nightmares. I can't sleep. It's been getting at me". The Advocate Depute then put it to the witness (at page 20) "... do you now accept that the whole passage which you have read out from the beginning of the statement is what you said to the police?" - to which the witness replied "Yes". He was then asked "And you told us that you told the truth to the police, is that right?" - the witness' reply was "Mm hmm". The Advocate Depute did then ask him "Why did you not tell us this when I was asking you about what happened when you arrived at the house to help that morning?". The reply was "'Cause my memory's no that good. And let's be honest with you. At the time, well after the fire, I had a really bad ...". The rest of the answer was inaudible. The Advocate Depute continued "Mr Devine, can I just ask you this bluntly? Did you want to tell us about that?" - Answer "Tell you about what?". The Advocate Depute continued "Drew Affleck running away?". The reply was "No". The Advocate Depute asked "Why not?" and the reply was "'Cause I don't remember seeing him running way. I seen people in the street and stuff like that but I couldn't specifically say it was him that ran away". The questioning continued "You've told us, you've accepted that all this portion of the statement you've read out is what you told the police. You accept that. Is that correct?" The reply was "Yes". The Advocate Depute asked "And you accept also that you told the truth to the police?" The reply was "Mm hmm". The questioning continued "Now that must mean that when you told the police 'I saw somebody running away from the fire and it was Drew Affleck' that was true?" The reply was "I don't remember saying to the polis it was him. I said I seen people. I never said any names or anything like that. I'm no that (inaudible)". The witness accepted that he had acknowledged that what he told the police was true, when that was put to him again by the Advocate Depute as follows "Mr Devine you told the police that because it was true. Isn't that correct?" The witness replied "Yes". The trial Judge intervened to ask the witness "Well why have you been so reluctant to say that?" The reply to that question was "'Cause to be honest, I can't remember saying his name to the police". The Judge then reminded the witness that he had taken an oath to tell the truth. After some questions put to the witness about his having seen cars in the vicinity of the fire, the Advocate Depute then asked the witness "Did you see where Drew Affleck went?" The witness replied "Through the pensioners' bit." He then answered some more questions giving some more detail as to the geography of the area and referred to his having seen a car parked in a small car park. He was then asked "Did you see where Drew Affleck was going in relation to that car?" and the reply was "Towards it". He went on to say that he did not see the appellant get into the car. Further questions about the street layout in which the house where the fire occurred was situated led to the following exchange (at page 28):

"Q: You're coming from, you go along Ayr Road and you would pass Sanderson Avenue on your right hand side.

A: Yes.

Q: And before you cross Sanderson Avenue, you are at number 13, you saw the, the smoke and the flames?

A: Yes.

Q: Where were you when you saw Drew Affleck?

A: At the corner of number 5 and number 7 of Sanderson Avenue.

Q: So that would mean that you have come from Ayr Road, you've turned right into Sanderson Avenue, is that correct?

A: Yes.

Q: And you're in Sanderson Avenue just at that block, the block for houses numbered one to seven.

A: Uh huh.

Q: And you're at, eh, the end of that block, eh, which is, eh, further away from Ayr Road?

A: Uh huh.

Q: Where did you see Drew Affleck that that point?

A: Eh, where number 46 and 44 in Sanderson Avenue are. Heading towards McKinlay Crescent."

[12] At page 30 the exchange of question and answers was taken up in the following way:

"Q: So you were coming along the portion of Sanderson Avenue from Ayr Road. And when you were outside the block of one to seven, you saw Drew Affleck further along that portion of Sanderson Avenue, or, or near to the house on that further portion at Sanderson Avenue. Is that correct?

A: Yes.

Q: Eh, precisely where did you see him?

A: As I said, behind number 44 and 46 and in front of 30 and 28."

The witness then went on to give evidence at page 33 that he saw the appellant running away from the house where the fire was. He was asked how the appellant was dressed and he said "I think it was a dark top and jeans." He confirmed that he knew the appellant well. At the end of his examination-in-chief it was put to him "You were exceedingly reluctant earlier in your evidence to mention Drew Affleck at all. Is that not correct?" The witness replied "I wasn't reluctant. I just couldn't remember."

[13] In cross-examination the witness accepted that at the time of the fire he was addicted to heroin and had fed his habit the night before the fire and that he would have been starting to withdraw on the morning of the fire. Senior counsel for the appellant in cross-examination then put the following to the witness (at page 47): "But I think you are indicating just now, that you still don't remember saying to the police ever that it was Drew Affleck?" The witness replied "No". The exchange continued:

"Q: Is that right?

A: Not to my knowledge, no.

Q: But I mean I can get confused sometimes. But that's not just me because I'm going to jump ahead for a second and then come back now, seeing you have done that. Because this other lawyer has been asking you questions. And you have said sometimes I don't remember saying that, other times you have said I did say that and it was true. And I am not entirely sure what your position is about your final statement. Can you help us? This is a murder trial, as hard as we can have, so let's try and get it right. What is your position on your final statement to the police, the one that you were shown, the one, the one you made months and months afterwards? Did you say that to the police about Drew Affleck or did you not?

A: I did say that I saw somebody running away.

Q: Right.

A: And I seen car and that. But I never, ever says that I knew who the person was.

Q: And do you know who the person was?

A: I don't to be honest, no."

[14] The exchange continued:

"Q: But you've just been answering questions, I mean I have just been listening to you answering, because I know for, as, as they say, sometimes it's the they way they tell them, or the way they ask them, I accept that. But you have been asking, answering questions where you've been using the name Drew Affleck constantly. I mean the Advocate Depute said to you and what else did you see Mr Affleck doing, and you would say, I saw him cross here. What else did you see him do, I saw him cross here. You have been giving evidence for about 20 minutes about Drew Affleck. Now these are very, very serious matters and no one here is entitled to catch you out or trip you up or put you under pressure. That is not our business. But if your position is you don't know if the person you saw was Drew Affleck, then you'd better say so.

A: I've already said that.

Q: But you've also said the opposite sometimes and that's my problem. Did you see a person over in that part?

A: Yes.

Q: Do you know if that person is Drew Affleck or not?

A: No."

At a later stage, in the cross-examination, under reference to the fourth police statement senior counsel for the defence put it to the witness (at page 52) "So whatever is in that statement, whatever is in that statement about you seeing Drew Affleck, that is not your position". The witness replied "No". At the close of the cross-examination the witness said that he could not say who was the man he saw running away from the fire.

[15] In re-examination (at page 69) the witness agreed with the Advocate Depute that he saw someone running away, running across Sanderson Avenue towards the car park at McKinlay Crescent. He was then asked "Who was it" and he replied "I don't know". He was asked again who the person was and he replied "I don't know who it was. I have always said that". The witness was then asked why in his fourth police statement he had said that the person running away was the appellant and he replied "Because it could have been him".

[16] Referring to the fourth police statement the Advocate Depute asked "The words which are recorded in your statement say this, do they not? 'The guy running away was Drew Affleck'". The witness replied "Yes it does". The Advocate Depute continued "Is that what you said?" The witness replied "Yes". The Advocate Depute asked "Was that true?". The reply was "Yes". The Advocate Depute again referred to the fourth statement and asked "Eh, you've accepted that you said the guy running away was Drew Affleck". The reply was "Yes". The Advocate Depute asked "Was it true that the guy running away was Drew Affleck?" The reply was "Yes". The questioning continued "In looking at the last two lines on that page, the two lines immediately above your signature, did you say to the police in that statement, I'm certain it was Drew Affleck. I grew up with him in the bottom end. I have known him for years?" The witness replied "Yes". The Advocate Depute asked "And when you said that, was that true?" The reply was in the affirmative.

[17] From the passages of the evidence of Devine just quoted it is abundantly clear that he was a highly unsatisfactory witness. He repeatedly equivocated, he claimed he could not remember things which he subsequently appeared to remember and he completely contradicted himself on many occasions. Moreover the questioning of the witness, to a very large extent under reference to his police statements simply contributed, in the way it was done, to the confused and confusing nature of the witness's evidence so that for example it is somewhat difficult at times to decide whether he was simply saying that he agreed that he had said certain things in his police statements as opposed to saying that his evidence in Court was not only that he had said these things to the police but that they were true when he said them and remained true as he gave evidence in Court. Having said all of that, it is quite clear from the passages quoted that the witness, on a number of occasions, gave unconditional evidence, in reply to questions, that he saw the appellant run away from the fire which was direct evidence of him telling the Court of what he saw on the morning of the fire. It will be seen that he offered various explanations for his failure to report this matter at an early stage and that one of these was that he was afraid of being attacked by the appellant's family.

[18] The jury could have been left with no other impression than that the witness was a highly unsatisfactory witness. They knew also that he was, at the time of the fire, a heroin addict who had fed his habit the night before and who was withdrawing from its effects on the morning of the fire. Nevertheless to reach the verdict they did they must have accepted the evidence he gave of his seeing the appellant run away from the fire as credible as they knew, having been directed on the matter by the trial Judge, that it was necessary for them to accept this evidence to corroborate the admission of the appellant given to the witness Vera Wilson.

[19] It was necessary to set out in some detail the nature and the scope of Mr Devine's evidence to provide the context for the second ground of appeal advanced before the Court. We now, however, turn to deal with the first ground of appeal.

First ground of appeal - failure of the Crown to disclose outstanding drugs charges against the essential witness Devine
[20] In the course of their investigations the Commission discovered that at the time of the trial there were two outstanding petitions relating to the witness Devine relating to the alleged supply of drugs by him. The witness gave evidence at the appellant's trial on 3 November 2003. Senior counsel for the appellant, before this Court, informed the Court that the existence of these charges were not known to the appellant, or his representatives, at the time of the trial. She, however, went on to say that the appellant did know that the witness Devine both used illegal drugs and dealt in them and that there might have been charges outstanding against Devine.

[21] The two petitions dealt with two separate courses of dealing. The charges relating to the first course of dealing arose from a search of where Devine was living, by the police, on 16 July 2002 when drugs were recovered. As a result of this he was charged with possession and supply of heroin and cannabis. On 3 August 2002 police officers, on patrol, noticed Devine and his girlfriend sitting in a car parked in a car park. The police officers saw the appellant approach the car and there appeared to be something of the nature of a transaction taking place between the appellant and Devine. The appellant, however, noticed the police vehicle and departed the scene. The police detained Devine and his girlfriend. They searched the car and found drugs and money. Devine was charged subsequently with having been involved in the supply of drugs. In the course of a police interview he admitted possession of some of the drugs but denied supplying drugs to the appellant. Sometime thereafter, the appellant was spoken to by the police regarding the incident but denied purchasing drugs from Devine.

[22] On 20 November 2002 the witness's home in Irvine was searched, under a search warrant, and drugs were found together with certain drug supply paraphernalia. Devine was detained, cautioned and interviewed. He was subsequently charged with drugs offences as a result of the search on 20 November. On 3 February 2003 Devine appeared at the Sheriff Court on two separate petitions, the first one relating to alleged supply of drugs between 3 March 2002 and 3 August 2002. The other (the second petition) relating to a period between 20 August and 20 November 2002. Charge 8 of the first petition was in the following terms:

"On 3 August 2002 at Broomlands Drive, Irvine SCOTT THOMAS JAMES DEVINE did supply a controlled drug, namely Diamorphine, a Class A drug specified in Part I of Schedule 2 of the Misuse of Drugs Act 1971 to another or others, namely Andrew Affleck in contravention of Section 4(1) of the aftermentioned Act; CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(a)"

Accordingly, prior to giving evidence, at the appellant's trial, Devine knew that he had been charged with an offence in respect of which the appellant was a witness. This, it was submitted by senior counsel for the appellant, meant that there was a "conflict of interest" between the witness and the appellant. The witness list for the Crown was provided to Devine's representatives on 24 February 2003 and the appellant's name appeared upon it. Senior counsel for the appellant said that evidence had emerged to show that on 26 September 2003 Devine's solicitor had had a telephone conversation with the Procurator Fiscal discussing proposals regarding the possible disposal of the two petitions against his client. As has been noted, Devine gave evidence at the appellant's trial on 3 November 2003. On 10 November 2003 he attended at his solicitor's office to go over his statement regarding the alleged drugs offences and to discuss a proposal which might be made to the Crown. On 11 November a formal offer from the Crown was sent which resulted in Devine pleading guilty to the charges which were the subject matter of the first petition and the Crown not proceeding with the charges in the second petition.

[23] Senior counsel for the appellant placed much stress on that sequence of events. That demonstrated that Devine gave his evidence, at the trial, before any offer had been made by the Crown in respect of the charges he was facing. There was close proximity in time between the giving of his evidence at the appellant's trial and the dropping of certain of the drugs charges. At the time of the trial, the appellant was a witness to one of those charges and therefore was someone against whom Devine fell to be regarded as hostile. There could be no doubt that the existence of the outstanding charges against Devine ought to have been disclosed to the appellant's representatives. That was established by what was said by the Privy Council in Holland v HM Advocate 2005 1 S.C. (P.C.) 3 particularly per Lord Rodger at para. [64] and paras. [73] to [74]. The requirement that the Crown disclose outstanding charges relating to Crown witnesses was reinforced by the Supreme Court in the case of Allison v HM Advocate 2010 UK S.C. 6 by Lord Rodger at paragraphs 7 to 9 and by Lord Hope at para. 25. That requirement, it was submitted, persisted notwithstanding the existence, or absence, of requests made by defence representatives for such disclosure or any other act or omission by the defence. The duty arose without it being triggered by any actings on the part of the defence. In the present case the fact of non-disclosure amounted to a violation of the duty to disclose for the purposes of Article 6 of the ECHR. Accordingly, the real issue in this chapter of the case, it was contended, was what was the effect of that violation. The answer to that question depended, it was contended, on the authoritative guidance now given in relation to such matters by the Supreme Court in Allison and also in McInnes v HM Advocate 2010 UK SC 7. While the latter case was concerned with the non-disclosure of police statements, what the Supreme Court had to say about the effect of non-disclosure, in relation thereto, applied equally well to all cases where there was a breach of duty to disclose relevant material. At paragraph 18 in McInnes Lord Hope was to the following effect. "The question for this Court, given that there was a failure in the duty of disclosure is what the correct test is for the determination of the appeal. It does not extend to the question of whether the test, once it has been identified, was applied correctly. This is because Section 124(2) of the Criminal Procedure (Scotland) Act 1995, as amended by the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999 (S.I. 1999/1042) provides that every interlocutor when sentence is pronounced under Part VIII of the Act, which deals with solemn appeals, shall be final and conclusive and not subject to review by any Court whatsoever, except for the purposes of an appeal under para. 13(a) of Schedule 6 to the Scotland Act 1998. The application of the test to the facts of the case was a matter that lay exclusively within the jurisdiction of the appeal court. But, as the appeal court itself recognised when it gave leave in this case, the question as to what the correct test is forms part of the devolution issue. It is properly the subject of an appeal under para. 13(a) of Schedule 6 and is open to review by the Supreme Court." His Lordship then, at paragraph 19 continued:

"Two questions arise in a case of this kind to which a test must be applied. The tests in each case are different, and they must be considered and applied separately. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence: HM Advocate v Murtagh, para. 11. The Lord Advocate's failure to disclose material that satisfies this test is incompatible with the accused's Article 6 Convention Rights. In the case of police statements, the position is clear. Applying the materiality test, all police statements of any witnesses on the Crown list must be disclosed to the defence before the trial: McDonald v HM Advocate, para. 51."

In the present case it was submitted that applying the materiality test, all outstanding charges relating to the Crown witness Devine ought to have been disclosed before the trial. Lord Hope continued, at paragraph [20] in the following terms:

"The second question is directed to the consequences of the violation. This is the question that arises at the stage of an appeal when consideration is given to the appropriate remedy: see Spiers v Ruddy 2009 SC (PC) 1. In that case it was the reasonable time guarantee that was in issue, but I think that the ratio of that case applies generally. As Lord Bingham of Cornhill put it in para. 17, the Lord Advocate does not act incompatibly with the person's Convention Right by continuing to prosecute after the breach has occurred. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether given there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate, para. 35 as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act 1995. The test that should be applied is whether, taking all the circumstances of the trial into account there is a real possibility that the jury would have arrived at a different verdict."

[24] Focusing on the phrase "real possibility" senior counsel for the appellant cautioned against over-burdening that phrase. All that it meant, she contended, was a reasonable as opposed to a fanciful or theoretical possibility. Reference was made, in that connection, to para 35 in the judgment of Lord Brown in McInnes where he said that what had to be identified was whether or not the non-disclosure gave rise to a real risk of prejudice to the defence in not having the material in question disclosed to it. In applying the test to the present case the context was important. Devine was clearly a crucial witness in what was a relatively thin Crown case. He on occasion, during his evidence in court clearly contradicted what he had said in his police statements. He did accept he was a heroin addict but, it was submitted, the fact that he was also someone charged with dealing drugs could have been regarded, by the jury, as a further material step in the assessment by them of his credibility and reliability. Given, also, that the appellant was a Crown witness in relation to one of the charges, which Devine still faced at the time he was giving evidence, at the appellant's trial, that could have been regarded by the jury as a basis for Devine having animus against the appellant such as to influence his evidence. Approaching matters in this way, it was clear, it was submitted, that had the outstanding charges been made known to the appellant's defence team, and reference made to them in the course of the trial, there was a real possibility of a different outcome to that trial. Defence counsel who had appeared at the trial had confirmed that, had they known of the outstanding charges, they would have made use of that information in cross-examination of Devine.

The Second ground of appeal section 106(3)(b) of the 1995 Act

[25] Senior counsel for the appellant then addressed the second ground of appeal. That, as noted, was based on the provisions of Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 which is in the following terms:

"By an appeal under sub-section 1 above a person may bring under review of the High Court any alleged miscarriage of justice which may include such a miscarriage based on -

(a) .... and

(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

The substance of what was advanced in respect of this ground of appeal concentrated virtually exclusively on the evidence of Devine, though it was accepted that the Court would set that evidence against other evidence in the trial, in reaching its conclusion upon the matter. Nevertheless, it was submitted, under reference to the various passages of Devine's evidence, set out above, that the terms of what the witness had to say and the degree of contradiction in what he said, taken together with the knowledge, not placed before the jury, at the trial, as to the relationship between the appellant and the witness arising from the drugs charges, were factors which, in combination, should persuade the Court that no reasonable jury, properly directed, could have reached the conclusion it did by relying on the evidence of Devine. It was submitted, that, when addressing this question, it was legitimate to have regard to what was known of Devine's outstanding drug charges, one of which involved the appellant, even although of course, the jury had not been aware of that material. The Court was invited to follow the approach of the majority of the Court in addressing such a question in the case of E v HM Advocate 2002 S.C.C.R. 341.

[26] For all the foregoing reasons it was submitted that the appeal should be allowed.

The Crown's Response
[27] In reply the Advocate Depute commenced, under reference to the first ground of appeal, by advising the Court that the Crown's position was that it was "open to serious doubt" as to whether there had been any breach of duty of disclosure by the Crown in the present case. At the time of the trial in this case, November 2003, it was not the practice of the Crown to gather the outstanding charges relating to Crown witnesses and to disclose these to the defence. The practice followed was a reactive one. If they were asked about such matters by the defence, each request would be considered on its merits. That practice had now been swept away since the decisions in the cases of Holland and Sinclair. Now, as a matter of practice, previous convictions and outstanding charges in relation to Crown witnesses are kept by the Crown on the same database and are handed over to the defence automatically. This gave the historical explanation as to why Devine's outstanding charges were not disclosed. There was another factor in this case, however, of significance. The appellant first appeared on petition in March 2001. The case was prepared in the Procurator Fiscal's office in Kilmarnock and then reported to the Crown Office in May of the same year. There was, at that stage, considered to be an insufficiency of evidence against the appellant. The papers were marked "no proceedings meantime". If the Procurator Fiscal or Crown Office had been asked to look at outstanding charges in relation to Devine at that time no such charges would have been disclosed. It was not until July 2002 that Devine was first charged.

[28] The Advocate Depute then proceeded to seek to distinguish the present case from the position in Holland. In Holland the position had been that there were outstanding charges against two witnesses who were the complainers in charges of assault and robbery. The solicitor acting for the accused had asked the Crown if there were any such outstanding charges. The Crown replied that they were not in a position to disclose any such material. In the present case no request was made by the appellant's representatives to the Crown about any outstanding charges relating to the witness. Indeed it appeared that the appellant and his trial lawyers had, in advance of the trial, some knowledge of the position of Mr Devine in that respect. In so contending the Advocate Depute made reference to paragraph 197 of the Commission's statement of reasons where they state:

"The Commission notes that Mr Irvine (the appellant's trial solicitor) had some recollection of Mr Devine having been charged with drugs offences before the trial."

The Advocate Depute accepted that that was a somewhat slight basis upon which to ascribe to the appellant and/or his representatives full knowledge of the actual charges in question. The Commission goes on in para. 197 to state:

"On the other hand, Mr Jackson (senior counsel for the appellant at the trial) does not have any such recollection. Mr Irvine gave the Commission two boxes of files relative to the present case. The Commission could not find any reference in those files to Mr Devine having been charged with drugs offences. Crown Office stated that there is no written record of their having disclosed Mr Devine's previous convictions and outstanding charges to the defence."

However the appellant was interviewed by the police about the allegations of his having been supplied with drugs by Devine, and from material now presented to the Court, on behalf of the appellant, namely a record of the work carried out by Devine's solicitor, on his behalf, it could be seen that Devine's lawyer had made efforts to precognose the appellant about the matter. A distinction fell to be drawn, it was submitted by the Advocate Depute, between the application of the duty of disclosure in relation to previous convictions of witnesses on the one hand and outstanding charges in relation to witnesses on the other. In respect of outstanding charges the duty was one imposed "on those handling the Crown case" and related only to charges of which such persons were actually aware. There was no general duty to disclose charges. The duty was triggered by a request made by the accused or his representatives. The extent of the duty would then be influenced by the information provided in the request. If a request was made and the Crown Office were aware of outstanding charges they had a duty to disclose them. In Holland the position was that the Crown did know of the relevant charges and an appropriate request for them had been made. The problem was the Crown had refused that request. That that was the mischief that the decision in Holland was intended to address, was clear from what Lord Rodger said in his judgment at paragraph 74. Again in Allison Lord Rodger in applying the decision in Holland was at pains, it was said, to state that the duty of disclosure only arose in relation to outstanding charges of which the Crown Office were aware. - Compare para. 7 and para. 10 of Lord Rodger's judgment. Lord Hope made the same point at paragraph 27 when he said:

"In HM Advocate v Murtagh (2009) UK PC 36, 2009 S.L.T. 1060, para. 11, I said, under reference to McLeod, Holland, Sinclair and McDonald, that it was well settled that the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence." (emphasis added).

In HM Advocate v McDonald (2008) UK PC 46, 2008 S.L.T. 99 at para. 50 Lord Rodger said:

"Put shortly, the Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (discloseable material)" (emphasis added).

[29] The chronology of the present case was, it was submitted by the Advocate Depute, important. As previously noted the appellant appeared on petition in relation to the murder charges on 28 March 2001. He was never fully committed and he was released on bail. In May 2001 a decision was taken by Crown Office that there was insufficient information available at that time to proceed against the appellant. On 26 July 2002 the witness Devine gave the police the statement incriminating the appellant. This prompted the Procurator Fiscal to re-report the case to the Crown Office. It was still considered that there was an insufficiency of evidence against the appellant. On 11 December 2002, however, Vera Wilson gave her statement incriminating the appellant on the basis of his confession. That resulted in the matter then being reconsidered by Crown Office and an application being made to the Sheriff for retrospective extension of the relevant twelve month time bar to enable the prosecution now to proceed. Crown papers relating to the prosecution had been examined in recent times and there was no indication that any person handling the prosecution, either in the Procurator Fiscal's Office, or in the Crown Office, (including the Advocate Depute at the trial) were ever aware that there were outstanding charges relating to Devine. The Advocate Depute frankly accepted that he could not give a "cast iron" guarantee that every person and every paper relating to the prosecution of the appellant had been checked, but such papers, as were available, did not reveal any knowledge of the outstanding charges against Devine on the part of the persons prosecuting the appellant. The relevant officials had been spoken to and none had any recollection of Devine's charges. Similarly there was nothing in the case papers relating to Devine's charges that indicated that in them there was anything which linked Devine to the murder case against the appellant. There were no previous convictions relating to Devine. Accordingly, it was submitted, the Court should accept that, since it had not been demonstrated that the relevant outstanding charges were within the knowledge of the relevant officials dealing with the appellant's case, and no request having been made by the appellant's representatives in relation thereto, no duty of disclosure had arisen.

[30] If, however, the Court was not able to accept the Crown's position in that respect and came to the view that there had been a duty of disclosure, the question then had to be addressed as to the effect of any such breach of duty. This exercise had to be carried out by applying what was said by the Supreme Court in the case of McInnes in particular by applying what Lord Hope, at paras. 20 and 24 of his judgment had to say. If there had been a breach of the duty of disclosure the question was whether, had disclosure been made, there was a real possibility, taking all the circumstances of the trial into account, that the jury would have arrived at a different verdict. Put another way, "could it be said that the jury might reasonably have come to a different view on the issue to which it directed its verdict if the written material had been disclosed to the defence". It was highly significant, the Advocate Depute submitted, that Lord Hope emphasised that in addressing that question the Court has to bear in mind that "a trial is not to be taken to have been unfair just because of the non-disclosure (para. 20)". Again his Lordship at para. 24 had made certain points which were of particular significance when he observed:

"The question which lies at the heart of it (the relevant test) is one of fairness. The question which the Appeal Court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention Right, the jury's verdict should be allowed to stand."

It was submitted that when addressing the question as to the effect that non-disclosure might or might not have had there required to be a careful and anxious scrutiny of all the circumstances of the trial. Although previously the possibility of pressure having been exerted on Devine by the police to make the fourth statement had been raised, this had been rejected by the Commission and did not form part of the appellant's case now before the Court. Moreover the Commission had rightly concluded at paras. 191 to 201 of its report that the mere additional knowledge on the part of the jury that the witness Devine was a dealer in drugs, as well as being a drug addict, would not have materially affected the jury's attitude to his evidence. They would have had, in any event, little difficulty in considering that Devine was a very unsatisfactory witness. He was a heroin addict who, by his own admission, had been withdrawing from the effects of drugs on the morning of the fire. The jury knew that, on any view of matters, he had lied to the police. They heard him frequently changing his position in his evidence. By the end of his cross-examination he had reversed his position from what he had ultimately accepted it to be in examination-in-chief. In re-examination he went back to give evidence in line with what he had told the police in his fourth police statement. On any view this was a very difficult witness for the jury to assess, but, in reaching their decision, they must have accepted the incriminating part of his evidence. That was a discerning approach on their part. The jury also, of course, had before them the clear-cut confession evidence given by Vera Wilson which they must have also accepted. Senior counsel for the appellant had suggested that, had the jury known of Devine's outstanding charges, they might have thought that he had given his evidence in the way he did in the hope of a lower sentence in respect of the charges he faced. That was not a suggestion that even the Commission had entertained. Nor was there any basis for thinking that Devine's evidence was in any way influenced by such a consideration. All the defence could have done was to put a question to that effect, leaving matters entirely in the air. The blunt truth was that the jury would be bound to consider that somebody whose agenda was to give false evidence to meet his own ends would have gone about that in a very different way from the way in which Devine gave his evidence. There was no force in senior counsel for the appellant's submission that, had the jury known of the charges, they may have thought that Devine was giving evidence against the appellant because of bad blood arising from the charge in which the appellant was involved. The sequence of events was that Devine gave his fourth, and incriminating, police statement on 26 July 2002 but the charges involving the appellant were not brought until 3 August 2002. Had Devine, accordingly, made an incriminating statement to curry favour with the authorities then his hopes and expectations were dashed because fresh charges were brought after he provided the statement. In addition, in the context of the totality of the charges which Devine faced the one involving the appellant was a minor aspect of matters. In any event, Devine had admitted to the police that the drugs found in his car at the car park were his and that he was engaged in the supply of them to the appellant. The appellant denied such a supply. Standing the admissions of Devine it would have been difficult for him to go to trial on the charges involving the appellant.

[31] The Advocate Depute then turned to the role of any knowledge on the part of the appellant and his advisers as to the charges, when dealing with the second question as contained in the test set out in Allison. On the hypothesis that there had been a breach of a duty on the Crown to disclose, any actual knowledge of the undisclosed material, it was submitted, was relevant as to the question as to whether the trial was unfair or not. Underlying such issues was the requirement of "equality of arms" in criminal trials. There might not be, it was submitted, any inequality of arms if the appellant was otherwise armed with material which the Crown had itself failed to disclose and, accordingly, where the appellant had possession of undisclosed information that might require to be weighed in the balance in considering questions of unfairness. The case of Holland was authority for the proposition that in judging the "fairness" question in a non-disclosure case all relevant facts had to be taken into account - reference was made to Lord Rodger's judgment at para. [41]. Relevant factors would include the actual knowledge of the appellant and/or his representatives about the matter at issue. This submission was made under reference to the judgment of this Court in McInnes v HM Advocate 2008 S.C.C.R. 869 particularly at paras. [21] to [23]. In the present case the knowledge of the defence included the following:

1. The appellant's agents at the trial knew something of the charges relating to Devine, see paragraph 195 of the Commission Report.

2. The appellant knew Devine had been arrested and he himself had been interviewed two days later about Devine supplying him with drugs.

3. After Devine was placed on petition in February 2003 his agents had sought to precognose the appellant at his home about the drugs charge involving him.

It had been accepted by senior counsel for the appellant in her submissions that the appellant's defence team at trial had thought "there were outstanding charges". Accordingly, on the face of things, there was material available to allow cross-examination of Devine generally in relation to possible drugs dealing by him. There was certainly material available to the defence team which would have entitled them to cross-examine Devine in relation to the single charge in which the appellant was named as a witness. That cross-examination could have extended to asking Devine as to whether the appellant's possible status as a witness against Devine lay behind the incriminating evidence which Devine gave against the appellant. The Advocate Depute adverted to the fact that in the course of her submissions senior counsel for the appellant had referred to non-disclosure of previous convictions relating to the witness Vera Wilson although she had said that in the scheme of things this was a more minor matter. The Advocate Depute pointed out there was nothing in the grounds of appeal that gave any notice of any such point being taken. The first he had heard of it was when senior counsel raised it during her submissions. No such matter had been any part of the application to the Commission. Nevertheless from what was said at para. 16 of the Commission's Report it did appear that the defence team knew at the time of the trial of all or some of that witness's previous convictions and the convictions have, in any event, been brought out by the Crown during the evidence at the trial. For these reasons nothing should be made of this point.

[32] Turning to the second ground of appeal the Advocate Depute's first submission was that it was clearly wrong for senior counsel for the appellant to suggest that, in approaching the provisions of Section 106(3)(b), it was appropriate to have regard to evidence which was not placed before the jury, but should have been. In King v HM Advocate 1999 S.C.C.R. 330, the Court made it clear that what the appellant, who relied on the statutory provisions, had to establish was that, on the evidence led at the trial no reasonable jury could have been satisfied beyond reasonable doubt that he was guilty (at page 333F-G). As the Court had pointed out, also in that case, it was not sufficient for the Court itself to consider that it might have entertained reasonable doubt on the evidence (see page 334F). A jury could, it was submitted, reject parts of a witness's evidence and accept other parts. In the present case, the witness, Devine, had accepted, on a number of occasions during his evidence, that he had both made the fourth incriminating statement to the police and that the contents of that statement were true. The jury were entitled to accept that evidence and place it alongside the clear confession evidence given by the witness Vera Wilson to entitle them to reach their verdict. For all the foregoing reasons the appeal should be refused.

[33] In reply senior counsel for the appellant challenged, in the first place, the Advocate Depute's submission that the duty to disclose outstanding charges applied only where they were known about by the Crown officials handling the case, or where their existence was triggered by a request made by the defence. Too much had been read into what Lord Rodger had said at paras. 7 and 10 in Allison. The unqualified nature of the duty, it was said, was made clear by Lord Hope at paras. 26 to 29. Knowledge of outstanding charges could be actual or deemed. The Crown for these purposes had to be regarded as a unitary body, otherwise cases of non-disclosure of outstanding charges would raise inquiries into the existence of "Chinese walls" within the Crown and inquiries relating to the plausibility of the Crown not knowing what they claimed not to know. The cases of Sinclair and McDonald established that the duty arose even in the absence of a request or an inquiry by the defence representatives. In any event, the charges relating to Devine, in the present case, should have been known to those in the prosecution dealing with the appellant's case because Devine was put on petition and petition cases went through the Crown Office.

[34] Secondly it was not appropriate, as the Advocate Depute appeared to submit, that the probable effect of the outstanding charges not having been disclosed could only be assessed by evidence being led. The proper approach was to look at the nature of the undisclosed evidence and its capacity for producing a different outcome at the trial. In the present case the credibility and reliability of Devine were critical. The outstanding charges were of direct relevance to such matters. That was enough to indicate that there was a real possibility that the jury would have arrived at a different verdict had they been made aware of these charges. The Court in such a case should not move into the evaluation of the probative value of the material in question.

[35] In conclusion, senior counsel for the appellant submitted that in a non-disclosure case the conduct of the defence representatives was not a relevant factor, if there had been a violation of the duty on the Crown to disclose. In particular some kind of generalised knowledge of the material in question on the part of the defence or his representatives was irrelevant. Senior counsel did, however, go on to accept that if there had been specific knowledge of the material in question, and a decision by the defence not to use that knowledge, that may be a relevant consideration. But any question of "due diligence" on the part of the defence did not arise in a disclosure case. Its role was to be found in a fresh evidence case. A line of thought of the kind that the Advocate Depute had advanced in this chapter of the case raised the spectre of the issue of defective representation which, it was submitted, had no place in a non-disclosure case as opposed to a fresh evidence case.

[36] The motion to allow the appeal was renewed.

Decision
[37] The decision of the Commission to refer this case to the Court after they had reviewed it is recorded at para. 199 of its report and is in the following terms:

"In the Commission's view, the matters at issue are, therefore, (i) the question of the materiality of the information about Mr Devine's outstanding charges per se and (ii) the question of the materiality of the information of the date when he was first charged with drugs offences vis a vis the date when he gave a statement implicating the appellant in the murders."

On the first question the Commission's conclusion was put at para. 200 in the following terms:

"While the credibility and reliability of Mr Devine was clearly a crucial issue at the trial, the Commission does not consider that such an attack on Mr Devine's character ie. by simply putting to him that he, in addition to being a drug addict, sold drugs - would have been of material assistance to the appellant's defence or would have undermined the Crown case."

Consideration of the passages of Mr Devine's evidence which we have quoted above will leave the reader, as we have suggested, with no doubt, that he was a thoroughly unsatisfactory witness. The jury could have been left with no doubt that Mr Devine was an unsatisfactory witness and they would have, almost certainly, found his evidence difficult to deal with as a result. It is, however, sadly the everyday experience of those involved in business of the criminal courts of this country that the evidence required to establish the commission of criminal offences comes very often from those suffering from severe addiction to alcohol and/or drugs and those who can be demonstrated to have been unreliable and untruthful in the past. Not infrequently all such attributes might be found in the same witness. Such witnesses may also consider themselves to be under threat if they tell what they know to be true. Nevertheless such persons remain capable of telling the truth. It is for the jury, properly directed, to decide whether or not, and to what extent, in any particular case, it can be said that such a witness did tell the truth. In the present case the jury was clearly faced with such a task in relation to the evidence of Devine. That evidence was in its entirety left to the jury to consider. It is not suggested that it was inadmissible for any reason. Devine's evidence was crucial because if it were accepted on the key issue of identifying the appellant running way from the fire that provided the jury with the corroboration for the clear unequivocal and unshaken evidence from Vera Wilson that the appellant had admitted to her the murders. Such an admission may require very little in the way of corroboration. That is the context against which the present grounds of appeal are to be considered.

Ground 1 - First ground of appeal - failure of the Crown to disclose outstanding charges against the essential witness Devine
[38] We have set out above what the Advocate Depute informed the Court was the practice of the Crown in relation to disclosure of outstanding charges in relation to Crown witnesses at the time of the trial in 2003 and what the position is now. The Crown accepted, in this case, as we understand it, that, standing developments in the law, there was a duty of disclosure on the part of the Crown in relation to outstanding charges in 2003 but that this duty was circumscribed in certain ways and remained so circumscribed. As we have noted the Advocate Depute's position was that the duty only arose as regards outstanding charges relating to Crown witnesses which were known to those responsible for the actual prosecution of the case in which the persons in question were to be witnesses or where the defence had made a specific request that related to the disclosure of any such possible charges. Senior counsel for the appellant, as has been seen, took issue with the suggestion that the duty of disclosure should be circumscribed in any such respect. The Crown's position does gain some support from an authoritative source from what was said by Lord Rodger in the case of Holland. At para 74 his Lordship was to the following effect:

"Details of previous convictions are computerised and Procurators Fiscal can readily obtain the necessary information. Details about outstanding charges, especially in summary proceedings, may well be much more difficult to discover, if, for example, a different office is dealing with the matter. So while the duty of those handling the Crown case will be to disclose any outstanding charges of which they know, a general duty to search for outstanding charges would be unduly burdensome. If Crown officials are asked about a particular witness, they need only take such steps to search for any outstanding charges as are appropriate, having regard to any indications given in the defence request" (emphasis added).

Holland, of course, was a case where the defence representatives had asked the Crown if there were any outstanding charges against certain witnesses. Lord Rodger's statement as to the scope of the Crown's duty to disclose outstanding charges was endorsed by him in the subsequent case of Alison at para 7 under reference to Holland and again at para [10] where his Lordship said:

"the Privy Council's decision in Holland, that the Crown should disclose outstanding charges of Crown witnesses of which they were aware, simply reflects the common sense position..."(emphasis added).

Senior counsel for the appellant did not go so far as to say that in those paragraphs Lord Rodger was making incorrect statements as to the strict legal position, but she contended that they were being construed too restrictively by the Crown. We are bound to say that it is difficult, in our opinion, to read them in any other way than provides support for the Crown's position. Senior counsel for the appellant urged us to prefer the statement of Lord Hope on the matter in Alison at paras 25, and 29 which did not carry with them the same qualification as regards the duty to disclose outstanding charges. It has to be noted, however, that Lord Hope expressly refers to such a qualification in Alison at para 27 where he said

"In HMA v Murtagh (2009) UKPC 36, 2009 SLT 1060, para 11, I said, under reference to McLeod, Holland, Sinclair and McDonald, that it was well settled that the Crown must disclose any statements or other material of which it is aware which either materially weakens the Crown case or materially strengthens the case for the defence: see also Lord Rodger, para 48" (emphasis added).

Senior counsel for the appellant, however, in our view, did raise some real questions of practical concern if the qualification to the duty to which the Crown contends is to have effect. There seems some force in what senior counsel had to say in relation to treating the Crown as a unitary body so that outstanding charges at its instance should be considered to be within either the actual or imputed knowledge of the Crown. Nevertheless the dicta of Lord Rodger in the cases cited above, and to some extent what Lord Hope had to say in Alison do not appear to fall to be regarded as obiter, and are, therefore, binding on us. We would add that, whatever may have been the practice and position in the past, it would not seem to us, at first blush, at least, and without the matter having been further explored, to be placing an undue burden on the Crown to ensure that their computerised systems not only pick up previous convictions relating to witnesses who may be led at trials, but also outstanding charges in relation to such persons. Be that as it may, as will be seen, we do not require for the purposes of the disposal of the present appeal to decide conclusively as to whether or not the Advocate Depute's submissions on this aspect of the case are correct. We are not prepared to dismiss the appeal on that basis alone and we do proceed on the basis that a duty did arise in the present case. In that respect we have paid particular regard to the observation made by senior counsel for the appellant that since the charges relating to Devine were petition matters these would have been reported to the Crown Office.

[39] The next question which the court is required to address is

"had the outstanding charges in relation to Devine been disclosed and taking all the circumstances of the trial into account, is there is a real possibility that the jury would have arrived at a different verdict?"

see Lord Hope in McInnes at para 20 and at para 27. Senior counsel for the appellant submitted that had the jury known, not only, as they did, that Devine was a drug addict, who was withdrawing from the effects of drugs on the morning of the fire, but also that Devine had given his fourth, and incriminating statement, to the police at a time when there were outstanding charges relating to supply of drugs, including one in respect of which the appellant was a witness there was such a real possibility that the verdict would have been different. We disagree. As we have made plain it was clear that the witness Devine was a witness whose reliability and credibility were very much in issue before the jury, given the content of that evidence and the manner of its delivery. This was not a witness who would have presented to the jury as a potentially reliable and credible witness, until that credibility and reliability was undermined by material which showed that all was not necessarily as it seemed to be, by reason of outstanding charges against the witness, which touched upon questions of dishonesty. Senior counsel for the appellant sought to maintain that the fact that the outstanding charges related to dealing in drugs meant that the jury could have reached the view that a line had been crossed as to the witness's credibility and reliability. But the charges, not being charges involving dishonesty or attempting to pervert the course of justice, would, in our judgement, not have added materially to the jury's conclusion in relation to this witness's evidence where they knew that he had been a liar in the past and, in particular had told lies to the police. Moreover, the contention that the context in which the fourth incriminating statement was made to the police, namely where the witness faced outstanding charges, one of which involved the appellant, may have had an effect on the jury's view is also, in our judgement, unsound. As the Advocate Depute pointed out, the suggestion that the jury could have considered that there was "bad blood" between the witness and the appellant which could have influenced their assessment of the credibility of the witness's evidence, was misconceived having regard to the chronology of events since the witness having given his fourth statement to the police on 26 July 2002 before he was charged on 3 August 2002 with the offence involving the appellant. That charge was, in any event, a relatively minor matter in the context of the charges which the witness faced. But, in any event, as the Advocate Depute submitted, any jury would have been bound to conclude that nobody whose agenda was to give false evidence to meet his own ends, whether as revenge on the appellant or to curry favour with the authorities, would have gone about such an endeavour in the way that the witness did. He was clearly, in giving the evidence he did, and in the way he did give the evidence, not seeking to do his best for the Crown. The jury, in our opinion, had more than enough information at their disposal to put into severe question the credibility and reliability of the witness Devine. We do not consider that there was a real possibility that the jury would have arrived at a different verdict. As Lord Brown put matters in McInnes at para 39:

"Certainly, a finding of materiality relative to the disclosability of a document is not to be confused with a finding that it would actually have been of value to the defence nor regarded as pre-empting the defendant's need, on appeal, to establish that, but for the non-disclosure, he would have had a realistic prospect of acquittal".

The appellant, in our opinion, has not met the test so formulated. It follows that the non-disclosure of Devine's outstanding charges by the Crown did not, in the circumstances, render the appellant's trial unfair and there has not been any consequent miscarriage of justice.

[40] It will be seen that we have reached the foregoing conclusion without the need to have regard to what the position was with regard to the actual knowledge of the appellant and/or his defence representatives at the time of the trial, as to the existence of outstanding charges against Devine in relation to which, as has been seen, there was much debate before us. The duty to disclose, and any breach thereof, are but stepping stones towards possibly establishing a breach of the requirement of a fair trial under Article 6 and that, therefore, there has been a miscarriage of justice. In McInnes at para 35 Lord Brown posed the question "What, then, in the context of an undisclosed statement, makes a trial unfair?" The same question falls to be addressed in relation to undisclosed outstanding charges. Having posed the question Lord Brown continued:

"This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the Appeal Court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence" (emphasis added).

Underlying these considerations is, as noted above, what is often referred to as the need to have equality of arms as between prosecution and defence. It appears to us that if the accused, or his representatives, have discovered for themselves, in substance, the subject matter of the material which ought to have been disclosed by the Crown then it would be difficult for them to argue that any non-disclosure of the material had resulted in a real risk of prejudice to the defence. Senior counsel for the appellant did accept that if there was at least virtually complete knowledge of what the charges involved, and the defence had made a tactical decision not to use that material it might be difficult to argue subsequently that non-disclosure had any effect. We are not surprised that senior counsel made that qualified concession. It would seem to us simply to accord with good sense. The problem, in the present case, is that it cannot, with certainty, be said that the appellant and/or his advisers were aware of the full extent and nature of the charges against Devine. On the basis, however, of the factors relied upon by the Advocate Depute, it is reasonably clear to us that it can be said that the appellant and his advisers knew that there were pending criminal proceedings involving acts of supplying of drugs by the witness Devine. We are of the view, that in that situation, the matter could have been explored by counsel for the defence with the witness and the fact that there was no disclosure of the precise actual nature and full extent of the charges did not result in a real risk of prejudice to the defence with the result that the trial was, in the particular circumstances, unfair.


Second ground of Appeal - section 106(3)(b) of the 1995 Act - section 106(3)(b) of the 1995 Act

[41] It should, in the first place, be noted that this ground of appeal was refused as being unarguable by the Court (Lord Hamilton, Lady Cosgrove and Lord Abernethy on 16 June 2004). The Commission's report, of course, does not address any such basis for there having been a miscarriage of justice. We are of the clear opinion that there is no merit in this ground having regard to the way in which the provisions of Section 106(3) of the Criminal Procedure (Scotland) Act 1995 fall to be applied. In the first place, having regard to what the court said in King, we are of the opinion that senior counsel for the appellant was clearly wrong in suggesting that in addressing the question which the statutory provisions raise, regard might be had to evidence or material not before the jury. The jury at the original trial cannot be criticised for reaching the verdict it did on the basis of the existence of material which was not before them and, by definition, which could not have contributed to the verdict that they arrived at. The bulk of the submissions in support of this ground of appeal focused on the unsatisfactory nature of the witness Devine. That evidence, however, did include evidence which corroborated, and was consistent with, the clear admission evidence given by Vera Wilson. As in every trial it is open to a jury to reject some of the evidence of a witness, perhaps a great deal of it, but nevertheless to reach the view that, at times, among all the prevarication, the inconsistency and the contradictions some of the evidence given was true. The jury do not assess the evidence simply on the words uttered by the witness. They have the advantage of seeing and hearing how the witness gives his evidence as a whole and when he gives particular pieces of evidence. In the present case, indeed, the jury clearly must have adopted a discerning approach to Devine's evidence. That is not something which, in our opinion, they can be criticised for. It involves a proper exercise of their function. It does not mean that they have reached a verdict that no reasonable jury could have reached. For these reasons we consider the second ground of appeal fails.

[42] In the whole circumstances the appeal falls to be refused.