APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord EassieEassie Lord Emslie Lord PenroseMarnoch	[2009] HCJAC 55 18 Appeal No: XC99/05XC605/06 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL by MARK MURDO URQUHARTANDREW CUMMINGS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: KerriganKerrigan, Q.C.; , Q.C., Niven-Smith; Morison Haggerty, Dunfermline Henderson & Sons, Ayr

Respondent: DuguidK Stewart, A.D., Q.C.; ; Crown Agent

2 June 2009

18 February 2009

Introduction

[1] On 14 January 2005 at a sitting of the High Court of Justiciary in Edinburgh the appellant was found guilty by the jury of a charge of rape. The terms of the libel of which he was convicted were:

"on 24 January 2004 at a lane between Central Park car park and Chapel Street, both Cowdenbeath, Fife, you did assault [JK], c/o Fife Constabulary, Cowdenbeath, and did handle her private parts, attempt to kiss her on the mouth, seize her arms and force her to the ground, restrain her there, place your hand over her mouth, place her legs over your shoulders, lower her clothing, insert your private member into her private parts and you did rape her."

[2] The appellant sought, and on 9 May 2005 was granted, leave to appeal against that conviction on the ground that in his charge to the jury the trial judge had misdirected the jury in a manner constituting a miscarriage of justice ("the original ground of appeal"). A hearing on the original ground of appeal was thereafter fixed for 17 February 2006 but on that date counsel withdrew from acting for the reason that the appellant had withdrawn his instructions to his solicitors. The appellant then sought a continuation of the appeal (which was granted) in order to instruct other solicitors with a view to lodging supplementary grounds of appeal based on alleged failings of those representing him at the trial. Following the commonly used professional shorthand, we shall refer to those supplementary grounds as "the Anderson grounds".

[3] Eventually, more than a year later, on 11 April 2007, the proposed Anderson grounds were lodged; responses were then sought from those acting for the appellant at the time of the trial; and the Anderson grounds were in due course considered by the judge who had considered the original ground of appeal. On 4 June 2007 he granted leave as respects three paragraphs of the Anderson grounds. In an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 the court, on 11 July 2007, allowed a fourth paragraph to be added. Thereafter a number of procedural hearings took place in which those acting for the appellant informed the court that the appeal was not yet ready to proceed for a variety of reasons. It is perhaps not profitable to record or discuss the reasons wherefor those acting for the appellant in place of those originally instructed in the appeal considered the appeal not ready to proceed but inevitably further delay has resulted from them.

The original ground of appeal
[4] The original ground of appeal is couched in these terms:

"The presiding judge misdirected the jury in his charge to the jury regarding the standard of proof required for conviction. At page 11 of the said charge to the jury (lines 17 and 18) he directs the jury as follows:

'However, if you thought that the accused is guilty but at the same time you had a reasonable doubt about his guilt our law says that you must give him the benefit of that doubt and acquit him. If you have no such doubt then you must convict. So it depends upon what is a reasonable doubt is [sic]. It is quite difficult to explain but a reasonable doubt is a doubt based on good reason. It is the kind of doubt that would make you pause or hesitate and reconsider an important decision in your own lives.' [Quotation not indented in the original.]

At page 14 of the charge to the jury (lines 7-11) the presiding judge directs the jury 'if there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do.'

At page 14 and 15 (starting at line 24 of page 14) the presiding judge directs the jury '... but a reasonable doubt can be established by a single source of evidence.'

In the directions at page 11 referred to above the jury are directed that if they thought the accused is guilty but at the same time hold a reasonable doubt then the law says they must acquit. Thereafter the presiding judge defines reasonable doubt as a doubt which makes you hesitate and reconsider a decision. Taken together the jury were asked in these directions to decide if the appellant was guilty and then if so to consider whether they hold a doubt such as would cause them to reconsider that conclusion. This is a material misdirection because the jury should not have drawn a conclusion of guilt before they were satisfied beyond a reasonable doubt of the same. Moreover the definition of reasonable doubt is normally a doubt which results in hesitation not reconsideration.

In the directions at pages 14 and 15 above there was a misdirection because no evidence is required in order for a jury to have a reasonable doubt the accused being presumed to be innocent.

It is submitted that the said misdirections have resulted in a miscarriage of justice."

In his submissions to us, counsel for the appellant rehearsed what was said in this ground but added little by way of material amplification of its terms.

[5] We take first the criticism to be distilled from the somewhat unstructured terms of this ground of appeal that the trial judge erred in his explanation to the jury of what was meant by reasonable doubt, namely by adding after the reference to a doubt causing hesitation, a reference to a re-consideration of an important decision in the lives of the jury members. The trial judge goes on in the succeeding passage of his charge to exemplify further what he meant by this in practical terms.

[6] However, in so far as the ground of appeal complains of the adding of the words "and reconsider", the short answer to that complaint is to be found in the decision of this court in Adams v HM Advocate 2005 S.C.C.R. 479, to which we were referred by the Advocate depute. In that case the presiding judge charged the jury that a reasonable doubt was "the sort of doubt which, if it affected a matter of importance in your own life, would cause you to pause and reconsider." The appeal was directed to the propriety of the inclusion of the words "and reconsider". And the appeal was refused. In paragraph [9] of his Opinion in that case Lord Macfadyen, with whom the other members of the court agreed, said:

"It is possible, in my opinion, to dispose of this ground of appeal very briefly. Accepting, as the appellant did, that it is legitimate to direct a jury that reasonable doubt is the sort of doubt that would cause a juror, in a matter of importance in his or her own life, to pause or hesitate (see, for example, MacDonald v HM Advocate, Lord Justice Clerk Ross at p 671B), the only issue raised on the appellant's behalf is whether the addition of the words 'and reconsider' altered the standard in a sense adverse to the appellant. This case is, in my opinion, distinguishable from cases such as MacDonald, Buchanan v HM Advocate and A v HM Advocate, in which the additional words used implied that a reasonable doubt was one which would dissuade the juror from a particular course of action. Considering the language used by the trial judge in the present case, I can see no sensible purpose that would be served by a pause or hesitation other than that it should afford the opportunity for further thought; for 'reconsideration' of, 'reflection' upon or 'review' of the situation, I am therefore of opinion that to articulate that point by the introduction of the words 'and reconsider' into the sentence in question made no material difference to the sense of the direction. Those words did not, in my opinion, set an unduly high standard for reasonable doubt and thus lower the standard of proof incumbent on the Crown. In my view that is clearly so when the words which Mr Shead sought to criticise are read, as they ought to be, as part of the whole passage in the charge dealing with reasonable doubt. They therefore did not constitute a misdirection."

[7] In so far as the other criticisms suggested in this original ground of appeal are concerned, it is of course important to see the passages of which complaint is made in their proper context within the trial judge's charge as a whole. The passage at page 11, lines 7 to 18, quoted in the opening part of the original ground of appeal, is preceded by the following passage, commencing at page 10, line 8:

"The third heading is about the standard or quality of the evidence that is required before there can be a conviction and the rule is that the standard of proof required before there can be a conviction in Scotland is that the jury must be satisfied beyond reasonable doubt that the accused is guilty. Now, what does that mean? Well, it doesn't mean that you can find the accused guilty if you think well, he is guilty on balance rather than not guilty. It is not a weighing up of the evidence and seeing which way the scales fall. But equally of course you can't expect things to be proved as a matter of absolute certainty. Human beings aren't capable of coming to court in these sort of situations and proving things to that sort of level. So how it is usually explained is like this: if you are satisfied on the basis of the evidence you have and the directions that I have given to you that the accused is innocent of this charge then it is quite simple, you just acquit him. If you're satisfied on the same basis that the accused is guilty beyond reasonable doubt then you would convict him. However, if you thought that the accused is guilty ... [here the charge continues into the passage quoted at the outset of the original ground of appeal and which we have indented, for easier reference]."

In light of that passage it is apparent that the trial judge was simply endeavouring to convey to the jury the notion that it was not enough for the jury to consider the accused to be guilty unless they could do so beyond any reasonable doubt. In doing so he was reflecting what had been said shortly before, to the effect that belief that the accused was guilty on the balance of probabilities was not enough.

[9] Similarly the passages extracted in the original ground of appeal from pages 14 and 15 of the trial judge's charge, must also be read in their proper context. Having earlier given directions on the need for corroboration of the Crown case, the trial judge said this, commencing at page 14, line 1:

"So those, ladies and gentlemen, are the general rules of evidence but there is one final twist which I have to tell you about and that is this: the rule of corroboration which I mentioned which applies to the prosecution case doesn't apply to the Defence. If there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do."

The extracted passage at the foot of page 14 of the charge, continuing on to page 15, is simply part of a summary of the position respecting inter alia corroboration. Given that context, in which the trial judge is contrasting the need for corroboration of the Crown case with the absence of a need for corroboration of any defence evidence, the directions are understandable and unobjectionable.

[10] Accordingly, when read in proper context, we are satisfied that there was no misdirection of the jury by the trial judge in the passages selected in the original ground of appeal. The original ground of appeal therefore falls to be refused.

The Anderson grounds
[11] The supplementary, Anderson grounds maintain that "a miscarriage of justice has occurred in relation to the Appellant's conviction, due to inadequate preparation and presentation of the Appellant's defence." The Anderson grounds then proceed to particularise that general contention under four heads which, simply for cataloguing at this stage, may be briefly listed as follows:

(i) Failure by counsel at the trial properly to cross-examine the complainer;

(ii) Failure by the solicitor and counsel by way of preparation for the trial to obtain expert evidence respecting the effects of the appellant's excessive consumption of alcohol as an explanation for his change of position from police interview to response to caution and charge;

(iii) Failure by the solicitors and counsel to obtain, in advance of the trial, mobile telephone record evidence which might have demonstrated that, after the sexual encounter, the complainer had sought and noted in her mobile telephone the appellant's mobile telephone number and thereupon "dialled" the appellant's telephone number to confirm the accuracy of her insertion of that number in her contact list; and

(iv) Failure by trial counsel in cross-examination of the Crown's medical witness to highlight that evidence given by that medical witness to the effect that the complainer had bruising to her arm might be explained by the appellant's account of helping the complainer up from the ground after the sexual intercourse.

From that catalogue it is evident that the Anderson grounds fall into two categories, namely (a) the complaint of inadequate forensic performance by counsel during the trial [heads (i) and (iv)] and (b) the complaint of failure by the appellant's legal team to prepare appropriately for the trial by obtaining the additional evidence now desiderated by the appellant [heads (ii) and (iii)]. We find it convenient to discuss the first group - forensic performance - before considering the second group - preparation for the trial.

Forensic performance (1)
[12] The first complaint advanced is to the effect that in the course of presenting the appellant's instructed defence that intercourse had occurred with the complainer's consent, trial counsel failed, in the cross-examination of the complainer, to explore and challenge the "inherent unlikelihood" of the complainer's account respecting the removal of her clothing. This head (i) of the Anderson grounds is as follows:

"The Appellant's Counsel failed to cross-examine the Complainer as to how the Appellant had managed to remove her clothing (shoes, trousers and pants) in order to achieve penetration. Thus the defence failed to test or highlight for the jury the inherent unlikelihood of the Complainer's account as opposed to that of the Appellant (i.e. that this was a willing and entirely consensual encounter)."

[13] The act of sexual intercourse, which the appellant admitted to have occurred, took place in the open air on an area of ground adjoining a lane in Cowdenbeath. The appellant, on any view and on his own concession, had consumed a very large quantity of alcoholic drink. The complainer had also been consuming alcoholic drink. Having, in his examination in chief, brought the complainer to the locus, the trial Advocate depute then established with the complainer the clothes which she was wearing at that time. The clothing included, on the lower part of her body, a pair of jeans and black shoes; and on the upper part a "thin strapped, high top" and a cord jacket. The trial Advocate depute then questioned the complainer about the removal of her clothing in these terms:

"How did you go down on to the ground? - He pushed me onto the ground. He sort of had a grab of me and then he covered his hands over my mouth so that I would stop yelling and then I tried to get my phone out of my bag and stuff but I couldn't move my arms. Then I think ... I don't know how he managed to get my trousers unbuttoned and then I think then I think [sic] he had raped me at that point and then everything else is just a blank.

All right, I have to ask you for a little more detail about that? - Yes.

You said that he put your legs up by his shoulders [this reflected an earlier answer by the witness]. Where exactly do you mean? - Just right of the top on his shoulders.

You mean resting on his shoulders? - Yes.

Had he got your jeans undone before he did that with your legs or after it? - I really can't tell you. It happened so fast.

Did you[r] jeans come off completely? - Yes.

So your jeans were taken off? - Yes.

Were you wearing underwear of some sort? - Yes.

What happened to that? - They were with my jeans.

Taken off as well? Yes."

[14] In the course of his cross-examination of the complainer counsel for the appellant, having explored a conversation between the appellant, the complainer and two other girls (following those girls' interruption of an alleged sexual encounter of fellatio) continued thus:

"Thereafter when they left did you not take his penis back out and start to have oral sex with him again? - No.

Did you not unbuckle his belt? - No.

And he unbuttoned your jeans? - No.

And then he touched your breasts whilst you're basically masturbating him? - No.

And he asked you if you would lean over the brick structure to have sexual relations for the purpose to have sex from behind? - No.

And you said no at that period because you had your period? - I had my period.

And he then asked you to keep on giving him oral sex? - No.

And then he said, asked you if you had ever had sex when you're having periods, and you said no? - No.

And he said it is not really that sore when you're having a period? - No, that didn't happen.

You then said that notwithstanding you were having your period you would give it a go? - No.

And at that point he put his jacket on the ground and you lay down on your back and you had your jeans halfway down you round your knees? - No.

And he got on top of you and your jeans were halfway down and he had sex lying down on the jacket which lasted for about 15 to 20 seconds? - No."

[15] As counsel for the appellant stated, it is correct that trial counsel did not cross-examine the complainer in any detail as to the supposed impossibility, or improbability, of the removal of her jeans and underwear. However, as was pointed out by the Advocate depute before us, trial counsel did return to this issue in his speech to the jury. The transcript of the relevant passage of his speech read thus:

"Let's also consider the logistics of how she describes the rape. I think she says, 'I put my legs up on his shoulders' (inaudible) my shoulder. He was covering his hand with my mouth and his arms were outside my legs.'

Now, I might recall that she seems to have both his arms involved with both her arms but also she has him having his hand over her mouth to cover up any screams. Now that, ladies and gentlemen, is not possible, is not possible because you cannot hold two arms and cover her mouth at the same time.

And she has herself more or less bent double in this particular scenario. Ladies and gentlemen, the (inaudible) of how she physically describes the rape with more or less being bent double is (inaudible) especially when you consider that there's no muscular or tender nor muscular pain or tenderness reported when she sees the doctor after the whole experience."

[16] In the course of his submissions respecting this, and the other, Anderson grounds, counsel for the appellant referred to the decision in Anderson v HM Advocate 1996 J.C. 29; 1996 S.C.C.R. 114; and to McIntosh v HM Advocate 1997 S.C.C.R. 389. As pointed out by the Advocate depute, a useful summary of the scope of an "Anderson" appeal is to be found in the Opinion of the Court, delivered by Lord Macfadyen, in Burzala v HM Advocate 2008 S.L.T. 61 at para 33:

"It is salutary, when considering an appeal advanced on the ground that the representation of the appellant at his trial was defective, to bear in mind the observations made by Lord Justice General Rodger in Mills (at 221F-H) and quoted in paragraph 28 above. They are as relevant to such an appeal as they were to the additional evidence appeal in which they were made. They, and the observations of Lord Justice General Hope in Anderson (at pp 43-44) (p 163; pp 131C-132A) quoted in para 23 above, explain why the scope for an appeal on the ground of defective representation is limited. The limitations are clearly established. Such an appeal, like any other, can only succeed if there has been a miscarriage of justice (Criminal Procedure (Scotland) Act 1995, s 106(3)). That can only be said to have occurred if the conduct of the defence has deprived the appellant of his right to a fair trial (Anderson, p 43 (p 163; p 131F); Grant [2006 J.C. 205], (p 209; p 565) para 21). That, in turn, can only be said to have occurred if the appellant's defence was not presented to the court (Anderson, p 43 (p 163; p 131G); Grant, (p 209; p 565) para 21). That may be so if the appellant's counsel or solicitor acted contrary to instructions and did not lay before the court the defence which the appellant wished to put forward (Anderson, pp 43-44 (p 163; p 132A)). It may also be so if the defence was conducted in a way in which no competent counsel or solicitor could reasonably have conducted it (Grant, (p 209; p 565) para 21); and that has been illustrated by reference to counsel having made a decision that was 'so absurd as to fly in the face of reason' (McBrearty, [2004 J.C. 122] (p 130; p 922) para 36), or 'contrary to the promptings of reason and good sense' (McIntyre, [1998 J.C. 232] p 240H (p 379; p 388)). It is clear, however, that the way in which the defence is conducted is a matter for the professional judgment of counsel or the solicitor representing the accused person (Anderson, p 43 (p 163; p 131D)). Criticism of strategic or tactical decisions as to how the defence should be presented will not be sufficient to support an appeal on the ground of defective representation if these decisions were reasonably and responsibly made by counsel or the solicitor in accordance with his or her professional judgment (Grant, (p 209; p 565) para 22)".

We would observe that, while Burzala is otherwise reported elsewhere, it is apparently only the Scots Law Times' report which contains paragraph 33.

[17] Counsel for the appellant did not take any real issue with the summary of the tests for an Anderson appeal described by Lord Macfadyen in his deliverance of the Opinion of the Court in Burzala. It is thus clear that the standard to which criticism of the forensic performance of an appellant's trial representative must rise, as the initial stage in the consideration of an Anderson ground, is a high one. As indicated in the Burzala summary, it may be, and has been expressed, in various formulations, but the professional judgment of the trial counsel or solicitor must generally be respected and it is only a marked departure from what might be expected of a reasonably competent forensic practitioner which will provide any foundation for an appeal on an Anderson basis.

[18] We are well satisfied that the criticism advanced in this head of the Anderson grounds nowhere approaches that standard. It cannot possibly be said that the appellant's defence to the effect that the sexual intercourse, and other preceding sexual activity, was consensual was a defence not advanced to the jury. The criticism relates to the course adopted by counsel of not exploring, by detailed cross-examination of the complainer, the precise mechanisms whereby her lower clothing came to be removed. That was pre-eminently a matter for the judgment of counsel in the course of the trial proceedings and, having regard to the complainer's testimony in her evidence in chief that she had no recollection of how that occurred, we consider that it was a reasonable judgment for counsel to take that no profit to the appellant would result from pursuance of that matter in cross-examination and that the issue might be better alluded to in his speech to the jury, which counsel did, in the passage which we have quoted above. There is no substance in this head of the Anderson grounds.

Forensic performance (2)

[19] The second respect in which counsel is criticised for his performance in the trial (Anderson ground (iv)) relates to his cross-examination of the medical witness - Dr McKean - who had examined the complainer following her complaints after the incident. More specifically, the criticism relates to one of the injuries observed by Dr McKean (counsel having evidently done his best to neutralise the doctor's evidence respecting the two other injuries noted). That injury was bruising to the left upper inner arm of the complainer.

[20] To put this complaint in context, part of the appellant's account of matters was that after the act of sexual intercourse on the ground, he had taken the complainer by her arm to assist her in getting up from her supine position. Prior to the trial, those acting for the appellant had also obtained, respecting Dr McKean's report, advice from Professor Busuttil, a forensic pathologist, and had consulted with him. But it is not contended that the defence of the appellant at his trial was at fault in not calling Professor Busuttil; and having regard to the terms of his report, and the course of counsel's cross-examination of Dr McKean, we do not find that in any way surprising.

[21] As might be expected, the trial Advocate depute put to Dr McKean that the bruising to the complainer's upper left arm was consistent with the complainer's account (which he shortly summarised) but adding, in the Advocate depute's words, "albeit that it might also be consistent with other things". To that question, Dr McKean replied: "Yes, I would accept that as a possible explanation".

[22] In cross-examining Dr McKean, trial counsel elicited, as respects the injury in question, namely that shown in photograph No.10 in the photographs before the jury, the following:

"The fingertip bruising there I think you have said would be consistent with if the accused was forcibly holding the complainer by the arms? - Yes it would be consistent with that.

But again in the context of the scenario that I have described to you, passionate drinking, rather unusual encounter, bruising of that sort of nature could occur in that perhaps rather rough encounter is that fair to say? - Yes a firm hold to support someone or other mechanisms would be equally likely to produce fingertip bruising.

Because whilst one would accept that type of fingertip bruising is not typical of a normal sexual encounter, if passions are greatly aroused and a bit rough and unusual then that sort of bruising could be created? - Yes I think there are many explanations for the cause of this bruising, which could be equally consistent with the mechanism you describe.

When you say many mechanisms, what kind of mechanisms? - Well you alluded to intoxication with alcohol. I notice snow on the path. Someone falling, someone grasping to support them - you know, all these types of things would result in a grasp fingertip bruising. It may not be an assailant mechanism. It could be a supportive or helpful mechanism. There is no way that I can tell from this photograph what mechanism is involved.

So it could be an assault, where equally it could be the reverse, it could be a supportive mechanism? - Yes." [Appendix No.18, p 97 line 11 ff].

[23] In his address to the jury trial counsel naturally founded on the concessions gleaned in that passage of his cross-examination. He referred the jury to the appellant's evidence that he had supported the complainer in raising her from the ground and, importantly, the evidence of Dr McKean that the bruising in question could well have come from a supportive action.

[24] Ultimately the criticism advanced is that, notwithstanding the agreement obtained from Dr McKean that the bruising might have resulted from a supportive mechanism, counsel should have pursued with Dr McKean more specifically that the bruising was consistent with the appellant's account of assisting the complainer to her feet following the act of sexual intercourse.

[25] Our distinct impression is that in his cross-examination of Dr McKean counsel concluded that he had achieved as much as he could profitably achieve by way of cross-examination. And that he had achieved a basis upon which he could advance to the jury - as he did - that the medical evidence respecting also this injury was neutral.

[26] This is plainly a matter for the judgment of trial counsel. We can see no good ground upon which his judgment can be impugned, let alone a ground upon which criticism of his judgment in this matter might approach the standards of an Anderson ground. We therefore see no merit in the ground of appeal tendered as ground (iv) of the Anderson grounds.

[27] In summary, we are satisfied that there is no merit in either of those heads of the Anderson grounds which relate to the conduct of the trial by counsel.

Preparation for trial (1)
[28] The background circumstances to this ground of appeal (Anderson ground (ii)) is are that when first interviewed by the police on 30 January 2004 the appellant, put shortly, maintained that he had no recollection of matters occurring after he had left a particular public house - the Clansman - on the preceding Friday night or early Saturday morning and thus had no recollection of any sexual activity after he had been in the Clansman. However, on the morning of Sunday 1 February 2004, when he was charged (by the same police officers as had interviewed him previously) with the rape of the complainer, the appellant in response said this:

"I'm wanting tae say that [JK] was chasing me all night inside Partners. Evertime I approached my brother-in-law who was dancing with a friend at the time she would come up tae me and she would try tae dance in front of me and rub her backside against my penis and I'd move away fae her. This happened several times in the night, then outside Partners I was waiting to see who would come out back for a party, friendwise, eh she come up and kissed me there and I thought it's the end of the night, I've no' got anybody, what the hell. I sat doon on the, the windowsill at the door next tae Partners and she come over tae me again and started kissing me, took my hand and led me towards the path and eh if you go up the path a bit there's a little electrical box type thing and eh we started kissing there. She took out my penis and started rubbing it then we heard voices, two girls came towards us. I put my penis away. She had a bit of a conversation with them and eh they carried on walking. She took my penis out again, I undid her belt and her button and started playing with her and eh she asked if, if she would give me a blow job and she did, then I asked her if she would bend over the, the box. She says no I've got my period, it'll hurt. I says right then so I asked her if she would give me a blow job again. She said okay and we moved onto the path and eh she was doing that and I was playing with her again and I said have you ever had sex with your period and she says no. I says well it doesnae hurt that much. She says right then, so I put my jacket down, she lay down on the, on my jacket and her trousers were down at her knees, eh I inserted my penis, we had sex for about a minute and I stood up and says sorry it'll normally last longer than that. So I put myself, fixed myself. She says it's okay I'll no tell anybody. So she, I helped her up, she fixed herself, she took my hand asked me for my phone number and I gave her it. She asked me to be her boyfriend, I says no and carried on walking up the path and ended up in Broad Street. She went up Broad Street and I went down Broad Street and that's basically what happened."

[29] The solicitors acting for the appellant were conscious of the difficulty presented for the defence by this change of position. It is apparent from their file notes that the explanation offered, at an early stage, by the appellant was that he had taken large quantities of alcoholic drink on the evening of Friday 23 to Saturday 24 January 2004 (the night of the offence) and had been drinking heavily on the following Friday (30 January 2004) prior to his being detained and interviewed by the police and that it was only after his arrest (at circa 2030 hours on Friday 30 January 2004) and subsequent continued detention in the police cells that he began to regain memory. In due course the appellant tendered in evidence before the jury a similar explanation (indicating, what we understand not to be disputed, that he had sought to make a statement on Saturday 31 January 2004, but the officers in charge of the case were not available until the following Sunday morning). Counsel for the appellant drew our attention to what was said by the Advocate depute in his speech to the jury. In essence, the Advocate depute submitted to the jury that one possibility was simply that the appellant was lying; but the other, accepting that his recollection had been severely affected by his consumption of alcohol and was in due course recovered, was that his account of matters was, by reason of the consumption of drink, unreliable.

[30] The criticism now advanced on behalf of the appellant of those who acted for him at his trial is that they failed to obtain and lead expert evidence, supportive of the appellant, to the effect that his heavy drinking could have induced lack of memory but that subsequent recall of matters might occur. In that respect, those now acting for the appellant in the appeal obtained two reports to demonstrate, as we understood it, what should have been obtained by the lawyers acting for the appellant at the trial.

[31] The first of those reports is from Dr Paul Skett, who is Reader in Pharmacology in the Institute of Biomedical and Life Sciences at the University of Glasgow. His conclusions are in these terms:

"1. The intake of alcohol as stated by the subject would result in a rapid and substantial increase in blood alcohol levels prior to the alleged incident.

2. Rapid and substantial increases in blood alcohol levels can lead to amnesia (both total and fragmentary).

3. The recall of information by the subject is consistent with alcohol-induced amnesia particularly given the prompting by Police Officers in the previous interviews."

[32] The second report is by Dr Ruth A Gillham, a consultant neuropsychologist at the Institute of Neurological Sciences at the Southern General Hospital, Glasgow who was provided, as was Dr Skett, with, inter alia, transcripts of all the police interviews. Additionally, she had a copy of Dr Skett's report. In her report Dr Gillham says inter alia:

"When initially interviewed by police [the appellant] claimed to be unable to remember events pertaining to the alleged offences. Some thirty-six hours later he claimed that he had recalled events, and indeed gave a detailed account of those events.

There are a number of possible interpretations of this presentation.

1 Mr Urquhart lied when he was initially questioned, as an automatic response to protect himself from saying anything incriminating. Before his next interview he had time to invent material to support his innocence.

2 He was genuinely unable to recall the events about which he was being questioned, realised that this might not sound convincing, and made up a story to cover the facts that he had been given.

3 He was genuinely unable to remember events when questioned on 30 January 2004, and subsequently did recall them and reported them accurately.

It is a matter for the court to decide which of these three possibilities is the truth and I can only comment on whether or not possibility 3 is theoretically possible. There is evidence that at the time of the alleged offence Mr Urquhart had been drinking heavily. The effect of alcohol on memory is well known and it is common knowledge that drinking may cause memory blackouts, in which recall of events during the time that [the] subject was drinking is lost from later recall."

Dr Gillham then reviews some of the scientific literature and concludes "that it is theoretically possible that [the appellant] was being entirely truthful when he was initially interviewed and denied all knowledge of events, and truthful when he subsequently gave a detailed account of them. I cannot comment on the likelihood that he was being truthful."

[33] Assuming that the lawyers employed by the appellant for his trial had instructed and obtained those reports, we have great difficulty in understanding how evidence given by their authors, speaking to the respective reports, would materially have assisted his defence. Dr Gillham, in particular, does not appear to us to provide any material support (and, we apprehend, that in some respects might have presented dangers for the defence when cross-examined by the Advocate depute). Much of what Dr Skett says - and we intend no disrespect whatever to him - amounts to little more than may reflect common experience of those in the general population who, on occasion, may have grossly over-indulged in the consumption of alcoholic drink. Importantly, neither Dr Skett, nor Dr Gillham provides, in our view, an effective answer to the submission by the trial Advocate depute to the jury (which was the branch of the submission upon which he placed most emphasis) that if the appellant's initial amnesia and subsequent recall of memory were the consequence of his admittedly grossly excessive consumption of alcohol, that excessive consumption would be highly likely to impair the reliability of what the appellant said, whether to the police in his response to the charge, or in his evidence to the jury.

[34] In these circumstances, even assuming some professional obligation on those acting for the appellant at the trial to obtain the desiderated reports from those experts, we do not consider that the desiderated reports, subsequently obtained, would have been of any material assistance to the defence. Accordingly, failure to obtain those reports, of no material assistance to the defence, cannot in our view result in their having been, in that respect, any miscarriage of justice in the sense of rendering the appellant's trial unfair. In our view this ground of appeal lacks merit.

Preparation for trial (2)
[35] The second aspect in respect of which the solicitors, and also counsel, are criticised is their failure to seek records of calls made by and to the appellant's mobile telephone on the date of the offence.

[36] In his response to caution and charge by the police on Sunday 1 February 2004 (the terms of which response are set out above), the appellant stated that after the act of sexual intercourse the complainer asked the appellant for his telephone number, which he gave to her. It appears from the attendance note in the solicitor's file that on the same day the solicitor attending on the appellant noted the appellant as saying, "She asked for my no. - I gave her it" (Appendix No.33, p 2). Those notes were subsequently elaborated in a typed statement which repeated that information, but with an addition that the appellant also got her telephone number.

[37] A consultation with counsel, attended by the appellant, was held on 5 November 2004. A variety of matters in connection with the preparation for the trial were apparently discussed. As respects the giving of telephone numbers the typed up, summary version of the solicitor's notes of the consultation reads:

"NB In the course of the meeting it became apparent that [the appellant] had exchanged mobile telephone numbers with the complainer at the time of the incident. She is alleged to have telephoned his mobile phone to see that it was the real phone. Clearly he didn't answer the phone and it therefore counts as a missed call which he deleted on the same evening. [Counsel] and myself both agree that the phone records of either or [sic] them are unlikely to show a record of this exchange."

The solicitor's manuscript notes, presumably taken in the course of the consultation, appear to read:

"She asked for ph. no - I gave her it. She asked if I would be her boyfr. I said n. She rang my phone to make sure it the right number".

In the margin is noted "Phone Record" and beneath that "N.a was a missed call". A little lower down in the manuscript notes is noted:

"I deleted her number fr. the missed call list. I had no intention of phoning her. A one night thing".

[38] In her evidence the complainer did not challenge, in any active sense, the suggestion that she might have sought and obtained the appellant's mobile telephone number. Her position in cross-examination was that she simply could not remember whether or not there was any exchange (transcript, p 60) and then, at p 69:

"And you then rang his mobile phone to make sure that he had given you the right number? - No, well I don't know.

And that was the only connection between you and your mobile phone, was to ring his phone to make sure that he had given you the right number because you were keen that he had given the right number so that there would be no trouble contacting him at a later stage? - I don't know."

[39] The contention advanced on behalf of the appellant is first, that because of the failure to obtain records of the mobile telephone calls to the appellant's mobile telephone, counsel was seriously handicapped in his cross-examination of the complainer, a matter which the Advocate depute submitted should be examined and assessed against the fact that the complainer did not, or was not able to, dispute what was put to her by counsel for the appellant in cross-examination.

[40] However, in any event, that contention assumes that the relevant telephone records would have been recoverable. In that respect, we have to note that according to the file of the trial solicitors, the first occasion on which the appellant suggested that the complainer had actually made a telephone call to his mobile telephone (to confirm the correctness of the insertion of his orally dictated number in her "contact list") was at the consultation held with counsel on 5 November 2004.

[41] Those now acting for the appellant have obtained and produced in the appeal process a report, instructed by them, by an expert, Mr John Hugh Butler of Geode Forensics Limited, who was asked to answer a series of questions. It is dated 15 October 2008. Mr Butler's task was made difficult by the fact that he could not be informed of the company providing the mobile telephone service to the appellant at the relevant time. In his report it is stated that by "the time of the commencement of the appeal" the appellant's SIM card "had been released to a third party and lost". So, even in general terms, the identity of the mobile telephone provider to the appellant's mobile phone at the time of the alleged offence is not given to Mr Butler.

[42] The need, at least in general terms, to identify the provider at the time of the events is evident from an earlier paragraph in Mr Butler's report in which he states:

"The records kept by phone companies have become more comprehensive over the last few years and have been retained for longer, a direct result of legislation such as the Data Retention (EC Directive) Regulations 2007. Further research would be needed to ascertain the exact situation in 2004 and would be complicated by not knowing which phone companies were involved. It is highly likely that call records would have been retained for at least a month and possibly as long as the twelve months which is required practice today. Certainly T-mobile kept records for a year at that time and Orange retained pay-as-you-go phone records for six months."

Consequently, it cannot be said that the relevant telephone records would certainly have been available in November 2004, had they then been sought by those acting for the appellant. We take November 2004 as the relevant date, since it is clear that it was only then that the appellant indicated that the complainer made any telephone call to his mobile telephone.

[43] We note that in McIntosh v HM Advocate 1997 S.C.C.R. 389, the court observed at p 396:

"As for the defence which is said to have been lacking due to inadequate preparation by the instructing solicitor, there is a complete absence of detail in the papers which have been put before us to show that anything was lacking when the case came before the court for trial which, had the case been prepared more thoroughly, would have been relevant to the appellant's defence. As the advocate-depute pointed out, the question which has to be addressed in an appeal on this ground is not confined to the conduct of the accused's counsel or his solicitor. The critical issue to which the ground of appeal has to be directed is what the effect of that conduct was on the defence. This cannot be discovered unless the appellant is in a position to identify the respects in which his defence was affected by this conduct. Where inadequate preparation is put in issue, as it has been in this case, the argument can take the appellant nowhere unless he can show what information would have been revealed if the preparation of the case had been conducted adequately."

In the present case the appellant does not offer, and we assume is not able, to establish that, had those originally acting for him sought the relevant telephone records in November 2004, those records would have been available; let alone, of course, that the records would have given any confirmation of the appellant's position stated at the consultation in November 2004.

[44] Apart from that difficulty for the success of the argument for the appellant under this head of the Anderson grounds, it also falls to be considered whether, in any event, the decision by the trial solicitor and counsel not to seek recovery of the telephone records can properly be categorised as a failure in the presentation of the appellant's defence which satisfies the high requirements of an Anderson failure. We can see no reason why the same tests relating to the presentation of the case in foro should not apply to preparation for that presentation, due regard being had to the fact that, in the course of proceedings in the court room, the person conducting those proceedings will often be required to take instant decisions without the greater time for reflection which may be available in the taking of pre-trial decisions. The authorities to which we were referred do not suggest any distinction.

[45] We acknowledge that evidence from a mobile telephone company's records that the complainer had indeed telephoned the appellant's mobile telephone at the relevant time would have been of some assistance to the defence (albeit that its overall significance was, in the event, rendered somewhat less by the complainer's acceptance in cross-examination that, as opposed to denial of the making of that call, she simply did not know whether she had telephoned his mobile telephone number). We also note the information provided to us by counsel that the firm of solicitors in question was aware of the existence of Geode Forensics Limited and the existence of mobile telephone records as a source of evidence, since that firm, and a predecessor firm with which it had amalgamated, had previously instructed Geode. However, as respects that latter matter, we would observe that from the notes of the consultation on 5 November 2004, the solicitor and counsel were certainly not unaware of records of telephone calls as a source of possible evidence. The view which they appear jointly to have taken appears to have been that because, on the appellant's own account, the appellant had deleted the "missed call" entry, it would not be extant on any record which might be held by the service provider.

[46] Assuming for the moment that the records might have been extant, in technical terms the assumption made by solicitor and counsel may have been incorrect. It may be that, if one deploys a counsel of perfection, inquiry could have been made with the service provider which might, or might not, have revealed an answer favourable to the defence in the limited way in which such an answer might have provided assistance. But lawyers preparing for trial have to bring a professional and practical judgment to the extent to which matters are to be investigated. Regard has to be had to what is reasonable and practical. It is not every single, conceivable or remote stone which has to be turned in preparation for a trial. The decision in question in this case was taken in November 2004 and, as we have indicated, appears to have proceeded upon the understanding that, by his deletion of the complainer's "missed call" the appellant had deleted any record of that. No material was provided to us to suggest that, among the legal profession at that time, such a view of the technical position respecting deletion of missed calls was so obviously mistaken as to amount to an Anderson failure. We, for our part, are not able from our own experience of mobile telephony, to make such a finding. In short, we are unable to hold that the decision taken by counsel and solicitor at the consultation on 5 November 2004, not to seek recovery of any mobile telephone records was deficient in the manifest respects required by the Anderson tests.

[47] For these reasons, we have come to the conclusion that this branch of the Anderson grounds does not succeed.

[48] Counsel for the appellant naturally invited us to consider all of the Anderson grounds not just individually, but also cumulatively. We have done that. We have to say that even taking everything cumulatively we do not consider that it has been demonstrated to us, as an appeal court, that there was any unfairness in the trial of the appellant arising from the Anderson grounds which would allow us to interfere with the judgment reached by the jurors.

[49] In these circumstances the appeal must be refused.

[1] The appellant was convicted after trial on indictment in the Sheriff Court of two charges of attempted fraud and fraud respectively, committed in each case on a female householder aged, in one of the charges, 77 years, and in the other, 76 years.

There were three co-accused on the indictment, namely Alexander Leonard Allan, William McAllister McPhee and Alexander Cameron Townsley. During the course of the trial the prosecutor withdrew the libel against Townsley. Both Allan and McPhee were convicted of various charges including the two charges of which the appellant was convicted. McPhee also appealed against conviction. His appeal was heard immediately prior to the hearing of the appellant's appeal and is advised along with the appeal of the appellant.

[2] As originally framed, the indictment alleged that the four accused had formed a fraudulent scheme to obtain money from elderly and vulnerable householders by misrepresenting the need for roof or other repairs to the dwelling, and overcharging the householder, and that in pursuance of that scheme certain of the four accused committed particular frauds. However, in the course of the trial the Crown departed from its allegation of the formation of a fraudulent scheme and what was ultimately presented to the jury were a number of separate charges of fraud in which the Crown sought conviction of a (varying) plurality of the accused on the basis of art and part involvement of such of the accused as appeared on the particular charge. For completeness we would mention that Allan appeared on two charges of breach of the peace in which he was the sole accused.

[3] The charges of which the appellant was convicted were charges 6 and 8 on the indictment, which are in these terms:

(006) on 19 August 2004 at the dwellinghouse at 5 Lothian Road, Ayr occupied by Mary Smith Cowan or Wyllie, then aged 77 years, you WILLIAM MCALLISTER MCPHEE and ANDREW CUMMINGS, at the house at which you ANDREW CUMMINGS had carried out roofing work previously between 1 May 2004 and 31 May 2004, both dates inclusive, did pretend to said Mary Smith Cowan or Wyllie that further work was necessary to the structure of said dwellinghouse and in particular the flat roof, that you would carry out said work to a workman like standard and the cost and materials would be £2,000, the truth being as you well knew that the work was unnecessary, grossly exaggerated or of a lesser value than that which you intended to charge and you did not carry out any work and you did thus induce said Mary Smith Cowan or Wyllie to give in part payment of any works that were to be undertaken by you the sum of £1,900 by cheque made payable to ALEXANDER CAMERON TOWNSLEY and you did thus attempt to defraud said Mary Smith Cowan or Wyllie of the sum of £1,900;

(008) between 1 August 2004 and 24 August 2004, both dates inclusive, at the dwellinghouse at 15 Ayr Road, Fisherton, near Dunure, Ayrshire, occupied by Catherine Todd McWhirter or Cooper, then aged 76 years, you ALEXANDER LEONARD ALLAN, WILLIAM MCALLISTER MCPHEE and ANDREW CUMMINGS did pretend to said Catherine Todd McWhirter or Cooper that work and repair was necessary to the structure of said dwellinghouse and in particular the roof, flat roof, skylight window and eaves, that you would carry out said work to a workman like standard and that the cost of works and materials would be £4,500, the truth being as you well knew that the said work and repairs were not necessary or the need had been grossly exaggerated by you, that the work and repairs purported by you to have been carried out to a workman like standard had been executed in a grossly negligent and unworkman like manner, that the value of the work being carried out and including the cost of materials had been grossly exaggerated and the true cost of work and materials should not have exceeded £300 and you did thus induce said Catherine Todd McWhirter or Cooper to give in part payment of any works being undertaken by you the sum of £3,500 in cash and you did thus defraud said Catherine Todd McWhirter or Cooper of £3,200 or thereby".

[4] While the Note of Appeal tables a number of grounds of appeal, some overlapping, Mr Kerrigan helpfully compressed those grounds which he considered arguable into two principal chapters related to the two charges of which the appellant was convicted, namely charges 6 and 8, plus a further "umbrella" head respecting the adequacy of the sheriff's direction on the application of the doctrine of mutual corroboration commonly known as the Moorov doctrine. For reasons into which it is unnecessary for us to go for the purposes of this Opinion, Mr Kerrigan was instructed at relatively short notice; he confirmed to the Court that despite that short notice, he had had sufficient time to consider and prepare his submissions; and, for our part, we have to say that we do not detect any arguable point which Mr Kerrigan omitted to take and argue.

Charge 6

[5] The background circumstances attendant on charge 6, which libelled the commission of an attempted fraud on 19 August 2004, were that earlier in that year, namely in May, the appellant had come to the complainer's door and advised her that her roof required repair. With her agreement he then carried out repairs and received £1,150 in payment. He was identified both by the complainer (by a hearsay photographic identification) and by a neighbour as the man carrying out those repairs. The appellant gave the complainer, Mrs Wyllie, a "guarantee" of the work which he had undertaken. (As may be noted, the libel in the indictment did not allege any fraudulent or improper activity in those May 2004 repairs).

[6] By reason of her age and infirmity, the complainer, Mrs Wyllie, did not give oral evidence. Instead the Crown adduced, in terms of section 259 of the Criminal Procedure (Scotland) Act 1995, hearsay evidence of what had been noted by police officers of statements by Mrs Wyllie to them. From that hearsay note the material evidence respecting events on 19 August 2004 is reported by the sheriff in these terms:

"Against that background, Mrs Wyllie in her statement spoke of the first man, the appellant, returning to her house with a fat man (the accused McPhee). The fat man with the appellant told Mrs Wyllie that he was there to inspect the work which the appellant had carried out. Mrs Wyllie referred to the two men coming to her door and McPhee speaking. She said that both men then went round the back of her house to carry out an inspection of the flat roof at the rear. Mrs Wyllie said 'both the males went round the back. I never saw any ladders so I don't know how they would get up on a roof'.

The fat man (McPhee) then came to her to say the felt (on the flat roof) had lifted etc. but not to worry the insurance should cover the cost of remedial work. On a later occasion he took from her the guarantee which she had received for the appellant's work. He obtained a cheque for £1900 from Mrs Wyllie for materials for remedial work".

[7] Counsel for the appellant submitted that on that narrative of the Crown evidence, apart from the evidence of the appellant having gone round to the back of the house, the appellant had no further involvement with the complainer. All of the subsequent dealings took place between McPhee and the complainer. The appellant was not shown to have any knowledge of McPhee's representations to Mrs Wyllie, so there was no evidence that he was participant in the attempted fraud. The sheriff should therefore have upheld the submission in terms of section 96 of the Criminal Procedure (Scotland) Act 1995 that there was no sufficient case against the appellant for him to answer.

[8] In broad agreement with what was argued by the Advocate depute, we are not disposed to accept this contention. The appellant first made contact with the complainer in May 2004, not in response to any inquiry by her, but by turning up at her door and offering to carry out roof repairs. He offered and provided to the complainer a "guarantee". By doing so, the appellant created the opportunity (of which he and McPhee took advantage) of his returning to the complainer's house, along with McPhee, on the basis of purportedly checking the previously executed work by reference to that guarantee. It was clearly open to the jury - at least in the absence of any contrary evidence from the appellant - to conclude that, notwithstanding the appellant's restricted involvement of 19 August 2004, he was participant on an art and part basis in this charge, if only from his being present - with the co-accused McPhee - after having obviously provided to the co-accused knowledge of the existence of the "guarantee" which he had given to the complainer and which lay at the base of the misrepresentation to the complainer. This was an inference plainly available to the jury to draw. The contention that there was no case to answer on this charge is thus, in our opinion, unsound.

Charge 8

[9] By way of preface to Mr Kerrigan's submissions respecting this charge, it may be of some help to set out ground of appeal 2, which is in these terms:

"The evidence in relation to charge (8) came from the complainer, Catherine Cooper, who spoke to the appellant repairing some slates on her roof. She was pleased with the job and the price. She told the appellant she needed work done on her flat roof as water was coming in. The next day, a Friday, the appellant arrived with four others including the third accused, William McPhee. Some of the men began work on the roof. The third accused, William McPhee, speaks to Catherine Cooper and states that he will cost the job. He goes away and comes back some time later. He states that the job will cost £4,500.00. Some men return on Monday to continue work. The appellant is not with them. He is driven to Mrs Cooper's house by the third accused who sees police in an unmarked car. He drives away at speed. Police follow and catch up with the car being driven by William McPhee. They detain both McPhee and the appellant. There is no evidence of any pretence whatsoever in relation to charge (8). There is no evidence that the appellant knew of any dialogue between William McPhee and Catherine Cooper regarding what required to be done.

Catherine Cooper told the appellant what required to be done and asked him to do the job. The evidence in relation to charge (8) does not disclose a crime known to the Law of Scotland".

[10] The sheriff's response to this ground of appeal is as follows:

"Again this charge involves roof repairs and an elderly householder. Mrs Cooper, 15 Ayr Road, Dunure was 78 years of age at the time of the trial. Her very elderly husband suffered from Alzheimer's Disease and died before any trial took place.

Mrs Cooper gave evidence. She identified the appellant as a man who came to her door and said he had noticed some slates were needing attention. He said maybe ten were missing. He quoted £60 as a price for repair and Mrs Cooper thought that was reasonable. The appellant did the work that day.

Mrs Cooper mentioned to the appellant that her rear roof needed some work done, with a view to having the appellant do it. Mrs Cooper said that the next day five men arrived including the appellant. She was not given a price for the job. She said that she had asked the appellant to look at the job expecting an explanation about what needed done and a price. When asked 'did you ask him to do it' she said 'I wouldn't say so'. The five then proceeded to strip the roof while no price was given to Mrs Cooper. They left the roof open. She was not told what needed to be done. The workmen left leaving the roof open. They came back the same day and McPhee then said it would cost £4,500. Mrs Cooper said that she thought it was an awful lot. She was told that it had to be in cash. McPhee said that he would run her to the bank. She got £3,500 in cash from the bank for McPhee leaving £1,000 to be paid later.

In his tape-recorded interview (spoken to by Detective Sergeant Dillett) the appellant admitted working on the roof. He said he helped to do the flat roof. He denied that he was the person who turned up at the house offering to Mrs Cooper to repair or replace slates. He denied receiving £60 from Mrs Cooper. He said that he was just a worker who loaned a hand to others. He was to tar a roof.

He admitted in that taped interview that he was in a car that was driven off at high speed when the police arrived in Dunure. He said he was driven to the job but said he never noticed the police when the car drove off. In the interview the appellant was confused, unclear and evasive. He said he did not know what was going on and he only got wages.

The evidence from Mrs Cooper was that the appellant was one of the workmen (there being five in all) who opened up the roof at 15 Ayr Road, Dunure. McPhee told Mrs Cooper she had to pay £4,500 in cash and she went to her bank and got £3,500 in cash to account.

Mrs Cooper said that the appellant was the first contact with her when he appeared and said that some slates needed attention. She paid him £60. He gained her confidence and matters proceeded from there with the arrival of the five workmen. It was the appellant who brought the workmen. The five of them then stripped the roof and the request was made for cash.

In his tape-recorded interview the appellant admitted working on the roof but denied any individual involvement. He insisted that he only did things that others requested, by lending a hand. He denied approaching Mrs Cooper in the first place and replacing slates. He denied that she had paid him £60. He denied bringing the workmen to do the roof. He completely played down his involvement. He said that he never noticed the police in the high speed pursuit because he was looking to his right. He chose not to give evidence".

[11] In his submission to this Court Mr Kerrigan proceeded by having regard to Mrs Cooper's evidence that it was the appellant who, for £60, had initially carried out the repairs to the slates at the front of the house. The critical factor was that following discussion with her husband Mrs Cooper herself decided that it would be useful to have the leaking in the roof of the rearward extension repaired and the skylight removed. Consequent upon that decision she asked the appellant to consider undertaking those works. It was, counsel accepted, fair to say that Mrs Cooper was utterly surprised when on the next day a number of men turned up and began stripping the roof at the rear without any reference to her. But any discussion as to the necessity for that work, and the cost of its execution, was not a matter to which the appellant was a party, since all of that was done by McPhee. As it happened, the work on the rear roof continued until interrupted by the arrival of the police on the Monday. Accordingly, submitted counsel, the evidence did not disclose that any crime was committed by the appellant.

[12] Accepting, at least for the moment, that the appellant was not present at the discussions between McPhee and the complainer, Mrs Cooper, the Crown evidence was such that the jury would be entitled to conclude that Mrs Cooper had been the subject of a fraud, in that she was persuaded to part with some £3,500 in cash as a part payment to account of a sum of £4,500, whereas there was evidence that she had had the work completed by a friend in the trade for £300, and she gave unchallenged hearsay evidence that, on a commercial basis, the cost of executing any necessary works could not exceed £1,000.

[13] So, given evidence of those fraudulent representations by Mr McPhee to Mrs Cooper, the question comes to be whether there was sufficient evidence before the jury to allow them to conclude that the appellant was participant in a scheme or general plan to defraud Mrs Cooper.

[14] In that respect the Advocate depute pointed to the fact that on Mrs Cooper's evidence the appellant arrived at her house uninvited and offered to repair the slates at the front for a reasonable price. He could, and no doubt did, thereby create in Mrs Cooper a sense of trust, which could later be utilised in furtherance of the criminal scheme which underlay the subsequent arrival of the five men and Mr McPhee's misrepresentation. When the appellant and the others arrived, that initial trust was there. They began stripping the roof without reference to the householder. There was accordingly, in the Advocate depute's submission, material to allow the inference that the appellant was participant in a scheme or plan to defraud the householder and the sheriff was accordingly right to reject the submission of no case to answer.

[15] Addressing these submissions, we observe at the outset that in addition to being identified in the Crown evidence as the person who initially turned up and repaired the slates for £60, the appellant was identified by Mrs Cooper as being one of the five men who turned up on the next working day and began stripping the roof - see transcript of Mrs Cooper's evidence, page 13. It may also be observed that according to the Sheriff's report of the appellant's police interview, the appellant admitted working on the flat roof on what was the next working day; but he denied being the person who on the previous day had turned up at the house, offering to replace slates for £60. So we have to proceed - as we think Mr Kerrigan acknowledged - on the basis that there was evidence that the appellant was the person who carried out the initial slate replacement for £60 and was amongst those who turned up the next day and began stripping the rear roof.

[16] In these circumstances we have come to the view that the Advocate depute is correct in his submission that the Crown had tendered sufficient to allow the case against the appellant to go to the jury. On the Crown evidence, the appellant made the initial, uninvited call and carried out the initial slate repairs for an unexceptional price. He was then one of the party who returned on the next day and began stripping the roof. That party included McPhee, to whom the evidence might no doubt point as being the individual making the particular fraudulent representation, but his presence flowed from the appellant's prior actings. Moreover, McPhee was the person to whom the appellant delegated negotiation with the householder, Mrs Cooper, who prima facie was his customer from the preceding slate repairs. Given the establishment of evidence of fraudulent representations by McPhee (see paragraph [12] supra) we consider that the foregoing circumstances were sufficient to establish a case for the appellant to answer. The evidence respecting the appellant's presence in the car driven by McPhee which was the subject of a police chase and his absence of protest in response to his then detention would also be, in our view, a further factor confirming that there was indeed a case to answer. Which the appellant chose not to do.

The Moorov directions
[17] While counsel for the appellant offered some minor criticisms of the possible application of the principle of mutual corroboration known as the "Moorov" doctrine, his strongest ground was, he submitted, the inadequacy of the sheriff's directions to the jury. Put in very short terms, the inadequacy was the failure of the presiding Sheriff to distinguish or individualise the position of each accused, but particularly the position of the appellant, who appeared on only two of the several charges.

[18] In his charge to the jury the Sheriff explained and exemplified the Moorov principle by reference to the two charges of breach of the peace faced by the co-accused Allan. He then turned to the fraud charges and said this:

"So far as the fraud charges, the Crown relies on the similarities in charges 3, 4, 6, 7 and 8. That is defrauding elderly and frail people by doing unnecessary work or not doing work or exaggerated work that needs to be done or has been done. The Defence I think had some criticism that the circumstances in the separate incidents were not similar. But in this case, ladies and gentlemen, there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule to apply but what you have to decide is firstly if that evidence is credible and reliable. Secondly, if the necessary link in time, character and circumstances has been established and three, if the rule should be applied. If you do apply it, then you can convict the accused of each of these charges".

[19] Counsel submitted that this passage was misleading in that it might be understood as suggesting that evidence respecting charges 3, 4 and 7 might be deployed in deciding whether, as respects the appellant, Moorov was applicable in the only two charges on which the appellant appeared, namely charges 6 and 8. Further, said counsel, the jury should have been directed that caution was necessary in the application of the Moorov doctrine, especially where there were only two charges in issue.

[20] In response the Advocate depute submitted that the jury would be well aware of the fact that the appellant appeared on only two charges. Moreover, the jury had been given standard directions on the need to consider separately the case against each accused and to consider the charges separately. If there were any risk of conflation in the passage quoted above, which he did not accept, it was offset elsewhere.

[21] It is of course a commonplace that a charge to a jury must be considered as a whole. At pages 10-11 of the transcript of his charge the sheriff says:

"Now, the indictment sets out the charges which the accused face. You will need to return a verdict on each charge separately. That means you will need to consider the evidence that relates to each charge separately but that does not mean because a piece of evidence is relevant to one charge it is not relevant to another charge. The same piece of evidence can be relevant to more than one charge.

Now, in some of the charges there is more than one person accused. You will need to return a verdict against each accused separately. That means you will have to consider the evidence against each accused separately. That does not mean because a piece of evidence is relevant to one accused it is not relevant to another accused. The same piece of evidence can be relevant to more than one accused but the accused do not necessarily stand or fall together. You can reach different verdicts on each of them. You can convict one and acquit the other, you can acquit both or all, you can convict them both or all. It depends on your view of the individual guilt or innocence".

Having explained to the jury the notion of concert, the Sheriff directs the jury thus, at pages 34-35:

"Now, here the Crown says the evidence shows there is a joint or common purpose in the committing of these individual crimes and you can infer each accused's actings came within that. The essence of the Crown's case is that people were working together to defraud elderly people in these individual charges. The Defence say no such conclusion can be drawn. The substance of the Defence position is that no plan of any kind has been disclosed in the evidence relating to these charges. In deciding this you should look at the evidence in stages. In each separate charge of fraud or attempted fraud, one, decide what is the evidence against each accused separately. Two, if there is sufficient to implicate each one decide firstly if there was a common criminal purpose among them and secondly if there was, what it was. Three, then with each accused decide if he was party to that and if so to what extent. If he was, he is responsible along with the other participants. If he wasn't, you could convict him only of what he did himself".

It may also be noted that at page 42, lines 19-20, of the transcript the Sheriff directs the jury that the Moorov rule must be applied with caution.

[22] In our view, while obviously it would have been open to the Sheriff to give clear reinforcement to the directions which we have just quoted when he came to discuss Moorov in respect of the fraud charges, and while it may be that many judges and sheriffs would have sought to give greater assistance to the jury in that regard, the question for us, as an appeal court, is not whether the charge to the jury might ideally have been better framed but rather whether, taken as a whole, the jury were misdirected in a manner constituting a miscarriage of justice.

[23] Addressing ourselves to that question, we consider that in the light of the directions which we set out in paragraph [21] above, the jury would be well aware of the need to consider the case against the appellant separately from the other accused. We have ultimately come to the conclusion that there is nothing in the terms of the passage complained of (quoted in paragraph [18] supra) which would deflect the jury from the need to give that individual consideration to each accused and each charge. That passage is expressed in very general terms, following the Sheriff's explanation of Moorov by reference to the breach of the peace charges. It simply confirms that the same doctrine applies in the jury's consideration of the fraud and attempted fraud charges. It does not contain the suggestion for which counsel contended. In the event we are not persuaded that a miscarriage of justice has occurred and we accordingly refuse the appeal.