Lord Justice General

Lord Nimmo Smith

Lord Cullen of Whitekirk

[2009] HCJAC 22

Appeal No: XC498/03












Appellant: Shead, Latif; BCKM, Edinburgh

Respondent: McConnachie, A.D., Q.C.; Crown Agent

4 March 2009


[1] The following is the Opinion of the Court, all of its members having substantially contributed to it.

[2] On 4 October 1973, after trial in the High Court at Glasgow, the appellant was convicted of the murder of Margaret McLaughlin on 6 July 1973 near Carluke Railway Station in Lanarkshire. He was sentenced to life imprisonment. An application for leave to appeal against conviction was refused on 13 December 1973.

[3] On 2 December 1993 the appellant's case was referred to this court by the Secretary of State in the exercise of his power under section 263(1) of the Criminal Procedure (Scotland) Act 1975, on the basis that a forensic report had not been disclosed to the appellant or his legal representatives. That reference resulted in an appeal, which was refused on 2 December 1994 (Beattie v HM Advocate 1995 J.C. 33). The appellant subsequently made an application to the Scottish Criminal Cases Review Commission. In July 2001 the Commission decided to refer the appellant's case again to this court under section 194B of the Criminal Procedure (Scotland) 1995 Act. This appeal hearing ensues from that reference.


Antecedents of the appellant and deceased

[4] At the time of the murder and of his conviction the appellant was 19 years of age, single and lived with his parents at 48 Unitas Crescent in Carluke. He was employed at the Lanarkshire Steel Works in Motherwell. On the date of the murder he began work at around 10pm and finished around 6am on the following day. There was evidence that he knew the deceased.

[5] The deceased was 23 years of age, engaged to be married, and lived with her parents at 30 Glenburn Terrace in Carluke. On the night of her murder she was due to travel by train from Carluke to spend the night at the house of her future sister-in-law in Glasgow.


[6] Unitas Crescent and Glenburn Terrace are part of the same settlement of houses in Carluke. Glenburn Terrace runs in an approximately east to west direction. At both its eastern and western ends it meets Unitas Crescent, which, as its name suggests, forms an arc to the north. Carluke Railway Station lies north-west of both streets. Between this settlement and the railway station lies an area of wooded ground known locally as "Colonel's Glen". At the time of the murder a path led from Unitas Crescent across an open area of ground into the wooded area of the Glen. A short cut could be taken to the railway station from the settlement by taking the path across the open area for around 150 yards and entering the wooded area, before turning left (west) and thereafter climbing up a steep slope to the railway embankment and following that embankment northwards to the station. The undergrowth on either side of the path within the wooded area was very high, with two to three feet of grass and nettles. There was a fence on the left hand side of the path as one approached the station. A small stream ran through the Glen at the bottom of a slope about 60 yards below the point on the path at the top of the embankment. There was evidence that the deceased was in the habit of taking that route to the station and that eight minutes was adequate time for that journey. West Avenue lies in close proximity to, and to the north of, the railway station. Further north again lies Stevenson Street, from where, still continuing north, one eventually reaches Old Wishaw Road.

Movements of the appellant and deceased on the evening of the murder

[7] According to the statements which the appellant gave to the police, he left his home at about 7.50 or 7.55pm, his intention being to buy some tomatoes before making his way to work. However, there was evidence from Crown witnesses suggesting that he had left his house earlier. Thomas and Ellen Allan said that they saw him walking past their house in Unitas Crescent heading in the direction of the shortcut towards the railway station at 7.40pm, a clock in their house which was possibly ten minutes fast displaying the time as 7.50pm. John Sirrell said that he saw him leaving his house and walking in the direction of the railway station between 7.35 and 7.45pm. Thereafter, Ian Freel testified that he saw the appellant in West Avenue between about 8.00 and 8.05pm. At about 8.15pm he was seen in Stevenson Street walking from the direction of the station by Thomas Bryce, to whom he spoke for around five minutes telling him that he was going to buy tomatoes to take to his work. At about 8.30pm he was seen by, and spoke to, James Gorry while approaching Gorry's nursery in Old Wishaw Road and then, within the nursery, by Mabel Wilson. While he was unable to identify him in court, it was clear that the appellant was also seen at the nursery by William Knox, who put the time at between 8.25 and 8.30pm, and who described the appellant as wearing a dark blue or black blazer-style jacket. Mabel Gorry also recalled seeing the appellant at about 8.30pm, indicating that he bought tomatoes from her before leaving for a bus which he said was due at 8.45pm. None of the witnesses who saw the appellant noticed anything unusual about him.

[8] According to her mother, Jeanie McLaughlin, the deceased left her house at about 7.52pm, in order to catch the "8.01 or 8.03pm" train from Carluke to Glasgow, although a neighbour, Elizabeth Carlin, spoke to seeing her leaving Unitas Crescent at 7.45 or 7.50pm. The deceased turned right at the end of Glenburn Terrace, heading north along Unitas Crescent in the direction of Colonel's Glen. She was carrying a tartan suitcase and had a bag over her shoulder. She was also carrying a black collapsible umbrella, which she had opened as it was raining. She was not seen by any witnesses boarding the train to Glasgow.

[9] It would have taken the deceased approximately 2 minutes 21 seconds to reach the point where the path enters the wooded area, if walking at an easy pace from her house. It would have taken the appellant about 2 minutes 30 seconds at such a pace to reach that point from his house. It would have taken a further 16 minutes 15 seconds or so to reach the bus stop near Old Wishaw Road, if one was walking there directly. The appellant claimed to have been walking with a limp on the evening of the murder. If that was correct, it would have taken him about 4 minutes 10 seconds to reach the top of the embankment. The last-mentioned timing was made on the exercise referred to in paragraph [17] below. The others were made on timed walks by Detective Constable Richardson and Detective Constable McCleary.

The discovery of the deceased's body and description of locus following the murder

[10] On the evening of 6 July 1973 it became apparent that the deceased was missing, and an initial search by police officers took place at around 4.00am on 7 July 1973. However, her body was not discovered until about 3.00pm that day, towards the foot of Colonel's Glen about 30 to 50 yards from the path up to the railway embankment. The pathologists' evidence was that she had been dead for approximately 20 to 24 hours by the time of their initial examination between 6.00 and 6.30pm on 7 July 1973. The deceased had been punched or otherwise struck on the mouth and right eye, stabbed 19 times on the body, causing a marked degree of internal haemorrhaging, and dragged from the path through long grass and nettles down the slope towards the stream. The injuries could have caused the deceased to become unconscious within five minutes of their being inflicted, with death resulting a further five minutes later. There was evidence that the knife referred to in the next paragraph could have caused the stabbing injuries sustained by the deceased, the width and length of the blade being consistent with the relevant wounds. There was no forensic evidence linking the knife to the appellant or to the deceased. The multiple stab wounds were considered to be the cause of death.

[11] Label productions were recovered from the locus on the afternoon of 7 July 1973. The deceased's umbrella was found lying damaged in undergrowth five or six yards to the right of the path where it led up the embankment. Below this, mid-way along the path, on its left-hand side, was a flattened area beside a broken cement post. A knife was found stuck in the ground close to that post. Beyond the post, again on the left hand side of the path, blood could be seen on the ground. To the right of the path at this point, and downhill towards the stream there was an area of newly-flattened vegetation. Around half-way down a smaller path leading to the stream blood could be seen in the undergrowth. Further down the slope a blue plastic bag which also bore blood-like stains could be seen. The deceased's body was just beyond that bag. On 8 July, after the undergrowth had been scythed, a "pinkie" ring belonging to the deceased was found about two feet from the left side of the path where it led up the embankment. Also found on that date, some distance from where the deceased's body had been found, in a wider part of the stream which formed a pool under overhanging bushes, was the deceased's tartan suitcase, brown suede shoulder bag, wallet and a toilet bag. There was conflicting evidence as to whether that suitcase was partly open or closed when discovered. On Monday 9 July 1973 aerial photographs of the general area were printed in the Daily Record newspaper after Detective Chief Superintendent Muncie had flown over it accompanied by members of the press.

Case against the appellant

[12] The case against the appellant depended to a large extent on statements which he made to the police and other witnesses following the murder and on his conduct after he had been arrested. The first statement which he gave to the police was taken at his home by Detective Sergeant John Adam and Detective Constable George Waddell, during house to house enquiries on 7 July 1973, and was recorded in DS Adam's notebook in the following terms:

"About 7.55pm on Friday the 6th of July, 1973, I left my home to go to Gorry's tomato houses to collect tomatoes. I do this weekly for my workmates. I went down the service road which leads from Unitas Crescent and up the railway bank. As I reached the top of the bank the 8.03 train passed going to Glasgow. I looked towards the station and I only saw one figure standing on the north-bound platform. I think it was a man. I carried on down through the old stables and made my way to Gorry's where I collected nine single pounds of tomatoes. I left Gorry's and went up to Carluke where I got the bus to Lanarkshire Steel Works where I work. At no time during the walk from my house to Gorry's tomato houses did I hear anything or see anything suspicious."

[13] DS Adam took a note of the clothing which the appellant claimed to have been wearing on the night of the murder. He identified the blue blazer-style jacket, subsequently seized from the appellant, as being similar to the one he was shown at that time.

[14] The following day, 8 July 1973, when asked by a neighbour, James Kelly, what he made of the murder, the appellant replied, "Well, it is a funny thing, I must have been one of the last to see her", explaining, "Well, I seen her on the path, but I never seen her at the station".

[15] On 10 or 11 July 1973 the appellant told one of his work colleagues, John McAllister, that he had spoken to the police, and that he had to speak to them again. When asked by Mr McAllister why this was, the appellant explained that he could not account for three minutes of his time. Mr McAllister suggested to the appellant that he must have been at or about the locus around the time of the murder, which the appellant appeared to accept. Mr McAllister asked if the appellant had seen anything, to which he replied, "I did. I seen blood, but it was where they skin the rabbits". Mr McAllister joked with the appellant, asking him what he had done with the knife, with the appellant replying that he did not have a knife. Another work colleague, Robert Lees, overheard this conversation.

[16] A further statement was taken from the appellant at his home on 10 July 1973, again by DS Adam and DC Waddell. It was recorded in DC Waddell's notebook in the following terms:

"On Friday 6th July, 1973, after coming off nightshift from Lanarkshire Steel Works I went to the doctor's at 9.00am to get a bottle of solution to rub on my knee. I came home and went to bed at 10.30am. When I wakened later that night my mother came up and asked me how many pounds of tomatoes I wanted from Gorry's for my workmates. She said that my sister was going in the car to collect them. I got up then, got dressed and went downstairs. It was 7.25pm when my dinner was ready. Five minutes later my sister left in the car to go for the tomatoes. She came back about twenty minutes later and said that the Gorrys were out. I put my jacket on and went out to go for the tomatoes at four or five minutes to 8.00pm. At this time I was wearing a fawn-coloured polo-necked sweater, blue jeans, black shoes, and a navy-blue suit jacket. I was carrying a red-and-blue bag to put the tomatoes in. I came out the front door and looked to my left and saw Walter Mathers walking out of the scheme. He would be passing Watt's house (... Unitas Crescent). I walked out to the front gate and saw Elizabeth Sirrell inside her father's car washing it. She stays at ... Unitas Crescent. I then went down the lane which leads to the short-cut up to the station. It was raining slightly at this time. I looked into the garden to the left and right of the lane. The only thing I saw there was a lawnmower lying on the grass at the back of Mathers' house. I passed these houses and made my way to the woods along the path which goes through the field. As I went through the opening into the woods I went down a slight slope and stopped there for a few seconds. I then made a run half-way up the path which is along the side of the fence, since it is quite a steep slope there. I slipped on the path and the bag I was carrying fell. I caught the fence with my knee and put my foot on top of the bag to stop it sliding back down. I looked back and saw that I had slipped on some loose chippings which had obviously come down from beside the railway line. I carried on up to the top. Just then the 8.03 train passed me and stopped at the station. A small boy waved out to me from the front compartment. I looked to my right towards the station platform and saw only one person standing in the shelter there. I was not close enough to recognise this man but I could see against the shelter that he was tall. I think he was wearing a brown raincoat. I did not see anybody boarding or leaving the train. I then walked away from the station past the old stables and towards Station Road. From Station Road I walked to Victoria Avenue, and somewhere between these two places I saw Ian Friel [sic], ... Cameron Road, Carluke. He used to work with Peacock, the milkman. He was walking towards Carluke, and he said hello to me. I then walked along Clyde Street and to Douglas Street and then on to Old Wishaw Road and into Gorry's tomato houses. I got there about 8.20pm and got served with the tomatoes and then left via the front entrance. About 8.30pm I made my way to Burn Road bus stop to get the bus for my work. I got the 8.43pm bus arriving at Lanarkshire Steel Works at 9.06pm. I went into the work at once and took the tomatoes down to my mates. I talked to some workers and clocked myself in at 10.00pm when I went to my own department."

There was no reference in this statement or in its predecessor to the appellant's having seen the deceased or to having seen blood.

[17] Later that evening the appellant agreed to reconstruct the journey he had made to Gorry's Tomato House on the night of the murder. He left his house at 7.55pm, walking with a slight limp as he claimed he had done on the evening of the murder, and was observed and followed by DS Adam and DC Waddell as he made his way to the wooded area and up on to the railway embankment. At that point the exercise was abandoned due to bad weather. Prior to this visit the deceased's body and all label productions, including the knife and the deceased's belongings, had been removed from the scene.

[18] On Wednesday 11 July 1973, the appellant spoke to James Gorry while ordering some tomatoes by telephone. He stated that he was going to take the tomatoes to England "away out of the road", which Mr Gorry took to mean away from Unitas Crescent and the police investigation. The appellant attended at Carluke police station at 7.00pm that day, having been requested to do so by the police. Between 7.00 and 9.30pm he went over his earlier police statements with Detective Constable John Semple and Police Constable Dennis Mair. During this time the appellant gave the following statement, as noted by DC Semple (the comments in round brackets being added by the constable to clarify matters where they were unclear):

"I am not sure if it was four or five minutes to eight, it could have been ten to 8. I had on the clothes I said I had on. The bag was red and blue that I had for the tomatoes. The lane is between Andrew Hamilton's house and the Mathers'. I looked into the garden of these houses. I saw an old lawn mower lying in the Mathers' garden. It was quiet and raining. I thought it funny that Hamilton's dog was not out. It usually runs to the fence barking. But when I got to the grass (ground before Colonel's Glen) I stopped for a wee while, I don't know how long. I went behind a tree (to the right). I tried to pee (urinate). I always pee here after I have left the house to go past the station or come to the wood. I go through the wood to skin rabbits for the pot. I cut them up the middle with a linoleum knife; that is a wee knife with just a small blade. Then I cut off their feet with an axe. I cook the rabbits and eat them. I tried to pee that night, but I couldn't. I mustn't have been ready. I thought I heard a noise in the bushes, I don't know what it was, but I got a fright. I ran to go up the path but I tripped and fell over something. I think it snapped; I don't know. It wasn't wood, I don't know what it was. I picked it up and threw it into the grass. It felt soft. I don't know what colour it was. There was nothing else lying on the ground. There is some blood. There is often blood on the ground in there (Wood). Dogs fighting or somebody skinning a rabbit leaves blood. I ran up the path and I slipped again. I hurted my knee on the fence post. I saw there was blood on my hand, my left one, and I wiped it on the water that was running down the wire of the fence. I dried my hand with a paper hankie. I rolled up the hankie and put it in my left trouser pocket I think, I am not sure. I ran through the back of the station. There was that man in the shelter. A wee boy waved to me from the front of the train as it went into the station. The train had cleared the station by the time I got past the buildings. That train was the three minutes past 8 for Glasgow, and I know it was on time because I looked at my watch, which was a minute and a half fast, and checked it. I didn't see anybody else. I went through the white gate to go up the path that crosses over the road (West Avenue off Victoria Avenue). I think it was on the path I saw the boy Friel [sic]. He said hello to me. I also saw Tam Bryce at his house when I was passing. I just spoke to him. I think I said I was going to Gorry's for tomatoes. I don't know when that would be, but it must have been before half-past 8, because that is when I left Gorry's to get the bus for my work at Burn Road. It is the 8.43 bus."

[19] During this interview, DC Semple began a sketch showing the route the appellant had taken through Colonel's Glen, marking points of significance. His evidence was that this sketch was completed later by other officers. He formed the impression that the appellant appeared to be adding to his statement "for the sake of talking" during this interview or was "not really normal". He went off on other duties, telling Detective Sergeant Douglas Mortimer about his concerns over the appellant's comprehension of what was being said to him, saying he was "a bit simple".

[20] DS Mortimer, along with Detective Constable Lewis Johnston, then interviewed the appellant further, using the sketch prepared by DC Semple as a guide. According to his testimony, DS Mortimer was at that stage not aware of anything having been found at the scene of the crime, other than the body of the deceased, although he did know that she had had an umbrella. After the appellant had indicated where he had fallen, DS Mortimer asked if he had tripped over tree roots. The appellant said no, indicating it had been a metal tube. DS Mortimer asked if he meant a pipe, and the appellant denied this, saying, "It was a black collapsible umbrella". He claimed that he had picked this umbrella up and thrown it away after he had fallen. DS Mortimer went to the production store, where he was shown the deceased's umbrella. He returned to the police interview room and asked the appellant if he had seen anything else when, having fallen, he was on the ground. The appellant picked up a newspaper, folded it twice, and stated that he had seen a brown bag about that size, using a strap from a policeman's radio to indicate the length of the straps and their position on the bag. DS Mortimer again went to the production room, where he was shown the deceased's shoulder bag, which was the colour and around the size indicated by the appellant. DS Mortimer returned to the interview room and asked the appellant if he had seen anything else. The appellant indicated that he had seen a plastic carrier bag, and blood at a flattened area of grass next to a tree on the left hand side at the point where the path entered the wooded area of the Glen. When asked if there was anything else which he had seen, the appellant said he had seen a blue-and-white or red-and-white plastic carrier bag. DS Mortimer returned to the production store, where he was given a plastic carrier bag which, when found, had contained a pair of white trousers. He took it to the interview room and asked the appellant if the bag he had seen was like that, to which the appellant replied, "Yes, the very same as that". DS Mortimer again asked the appellant if he had seen anything else, to which the appellant replied that he had seen "something blue-and-white which could have been trousers", "a white goonie" and "a small tin or jar or bottle of hair spray". Again DS Mortimer returned to the production room, where he was shown a pair of blue and a pair of white trousers, a toilet water spray, a hair-care product container with small print lettering which was not easily discernible, and a white blouse or smock. He learned that some of these items had been in the deceased's case and realised that the appellant could only have seen them if he had seen the case open.

[21] DS Mortimer then returned to the interview room and asked the appellant if he was "quite sure" he hadn't seen the deceased on the night of the murder. At that point the appellant began shaking and sobbing and said, "I saw her. She had her umbrella in her left hand and her suitcase in her right hand". The appellant began explaining that he had run after the deceased to help with her case. He was immediately cautioned, the caution being given in the simplified form that "he didn't require to tell me anything but anything he did tell me I would note it and it would be used in evidence". He then became more hysterical giving the following statement, as noted by DS Mortimer:

"They telt me they were going to cut me up into sardines if I telt the police. There were six of them. Three came down from the banking, three from the wood side. Two of them were wearing tall hats with mirrors or glass in them. The tallest man held her. I felt sick. They poked me with umbrellas and made me watch."

[22] He also spoke about the men stabbing the deceased "time and time again" and about his being held by some of the men and made to watch the attack, but DS Mortimer was unable to note down everything which the appellant was saying at that stage. The appellant was distraught at this point, shaking and sobbing, and had his arms around DC Johnston. He was described as having suffered what appeared to be very like a mild epileptic fit. The police officers left the appellant with a towel and some coffee, to allow him to compose himself. He was cautioned and charged with murder at 1.30am and replied: "I canny say no more. I didn't do it. It was they six."

[23] About an hour later the appellant, now in custody, was taken by car to Lanark Police Office by DS Mortimer and DC Johnston. During the journey he asked DS Mortimer, "Do you know how they cleaned the knife". He was again told he did not need to say anything, but stated that the men had cleaned the knife by pushing it in and out of the ground. He offered to show the police where this had happened. He was reminded that he did not have to say anything, but that if he wanted to assist he could do so later in the morning when it was light. At 5.30 am DS Mortimer and DC Johnston went to the appellant's cell and asked him if he still wanted to show them where the knife had been cleaned, again reminding him that he did not have to show them anything. The appellant agreed to help and was taken to Colonel's Glen. Also in attendance there were Detective Chief Superintendent Muncie and Detective Chief Inspector Gold. The appellant was handcuffed to DC Johnston, and was again reminded by DS Mortimer that he did not need to show officers where the knife was cleaned and that he was facing a very serious charge.

[24] The appellant indicated that the deceased had been attacked half-way up the steep slope, where the path led up to the railway embankment, saying, "Three men grabbed her and the biggest one stabbed her two or three times with a knife. Three men came out of the wood and caught hold of me and held me. I was sick, but they made me watch". He claimed that he had been held next to a tree on the right hand side of the entrance to the wooded area as this took place. He also said, "It was here, and they took a wee ring from her finger", holding up the small finger of his left hand. (It was in this location that the deceased's ring had been found after the undergrowth had been cut back.) He came back down the slope, stood next to the broken concrete fence post where the knife had been found and said, "They stuck the knife in the ground several times to clean it". He then went further down the slope and said, "I'll show you where they put her". He made his way to a fallen tree, muttering, "It was here" repeatedly. (This was the area in which the deceased's body had been found.) The officers were about to make their way back up the slope, when the appellant said, "There is a shorter way up". However, he then went further down, crossed over the fallen tree, and walked parallel to the stream for a short distance before going to the edge of it. He then said, "They threw her suitcase in the pool up there", pointing upstream. He then led the officers to a buttress, overlooking the part of the stream where the suitcase had been found. The appellant then climbed back up the slope and pointed to a tree next to the path, near the edge of the wood, saying, "This is the tree where I usually stop to pee. It was here that they grabbed me. I felt sick. I remember running away and falling and getting blood on my hands". Just past the tree on the left hand side, he pointed out the area where the grass had been flattened and where the blood had been. He then turned round and said, "That is where I threw the umbrella", pointing towards the area where the deceased's umbrella was recovered.

[25] The appellant did not have access to a solicitor, nor was any family member or support person present, at any stage between the time of his attendance at Carluke Police Station and when the early morning visit to Colonel's Glen was complete. There was evidence of a notice within the cell at Lanark Police Station advising those detained of the right to a solicitor. Psychiatric evidence was led which suggested that the appellant was emotionally immature, had lower than average intelligence and that, as a result, his responsibility may have been "somewhat", but not "substantially", diminished.

[26] A dark blazer-style jacket belonging to the appellant was seized when he was first taken to Lanark Police Office. Eight tissues were found in the left-hand pocket of that jacket, two of which were blood-stained. Analysis showed that this could not be the appellant's blood, but that it was from the same blood group as the deceased, that blood group belonging to 43% of the population. The Crown relied on this evidence as corroboration.

Discussion - introduction

[27] It is not suggested in the present grounds of appeal, nor was it suggested in argument before us, that the evidence admitted at the trial was insufficient in law to convict the appellant of murder. After all the evidence had been led, counsel for the appellant made a submission in the jury's absence that the judge should direct them to acquit the appellant on the ground of insufficiency. That submission was rejected by the judge and an application for leave to appeal, based essentially on the same proposition but concentrating on whether there was corroboration of evidence based on the appellant's own statements and actings, was refused on 13 December 1973. When in 1994 the appellant's case was first referred to this court, a question arose as to whether there was sufficient evidence before the trial court on which the appellant could be convicted. The court dealt with this issue in some detail, concluding that there was a sufficiency (1995 J.C., at pages 42-54). The essence of that decision was that there was, from the appellant's own statements and actings, evidence from which an inference could be drawn that he committed the crime and that the bloodstained handkerchiefs provided corroboration of that inference. That issue has not been revisited before us.

The first ground of appeal

[28] The principal evidence against the appellant at his trial was constituted by his own statements and actions, including what he pointed out to police officers when he accompanied them to Colonel's Glen in the early hours of 12 July 1973. No objection was taken at the trial to the admissibility of that evidence which was accordingly admitted before the jury. Evidence was, however, elicited in cross-examination of DS Mortimer that the appellant was "a bit simple", that after he had given an account of seeing the deceased attacked by six men there was "stuff coming from his mouth suggestive of a mild epileptic fit", and that no one suggested, despite the appellant having been cautioned, charged with murder and arrested, that his father be got or the services of a solicitor be obtained for him. As appears from the trial judge's charge, counsel for the appellant suggested in his speech to the jury that some unfair advantage had been taken of the accused in the course of the questioning of him. The precise terms of that suggestion are not available to this court, since there is no record of counsel's speeches. However, the suggestion of unfairness having been raised in this way, the trial judge gave to the jury directions as to how they should approach the incriminatory material. He said: "If you think that the information given to the police was obtained by some unfair means then you would have to reject it altogether." That direction was, if anything, unduly favourable to the appellant. Strictly, if the jury regarded that information as unfairly obtained, they were not obliged to reject it; they were, however, entitled to put no or little weight upon it (Chalmers v HM Advocate 1954 J.C. 66, per Lord Justice General Cooper at page 80 and per Lord Justice Clerk Thomson at pages 82-3). The direction in fact given may reflect a judicial tendency, which ultimately found authoritative expression in Balloch v HM Advocate 1977 J.C. 23, to leave, except in extreme cases, all questions of fairness to the jury (see also Murphy v HM Advocate 1975 S.L.T. (Notes) 17). That approach was ultimately disapproved in Thompson v Crowe 2000 J.C. 173, where the principles enunciated in Chalmers v HM Advocate were re-affirmed.

[29] Mr Shead for the appellant en passant criticised the trial judge's treatment of the factors bearing on fairness, it being said that that treatment was not balanced. We reject that criticism. While the treatment perhaps differs to some extent from how a jury would be charged today, it was not such as to constitute a misdirection, far less to give rise to a miscarriage of justice. There is no ground of appeal to that effect.

[30] The principles enunciated in Chalmers entitle an accused to obtain a ruling from the trial judge as to the admissibility or otherwise of evidence alleged to have been unfairly obtained and to obtain that ruling without the allegedly tainted evidence being first heard by the jury. They also make it possible for an accused to give evidence about the circumstances in which any statement was given or conduct took place without exposing himself to cross-examination before the jury about the circumstances of the crime. But, where a question of possible unfairness arose, counsel for the accused was not, and is not, obliged to seek a trial within a trial. As was pointed out in Thompson v HM Advocate 1968 J.C. 61 at page 66, a possible disadvantage of trial within a trial procedure was the "opportunity for the reconstruction of evidence for the second trial after the witnesses have seen how they are cross-examined in the first one". Whatever the force, or lack of it, of that consideration and, notwithstanding the subsequent criticisms (in Thompson v Crowe) of the passage in Thompson v HM Advocate in which the quoted words appear, counsel at the appellant's trial was entitled to take the view that the better tactic was not to take formal objection to the admission of the evidence but to invite the jury to discount it as unfairly obtained and accordingly unreliable (see Wardrop v HM Advocate 2005 S.C.C.R. 226, at para [18]).

[31] The appellant's grounds of appeal contain no criticism of counsel who acted for him at his trial. Nor, understandably, were any such criticisms advanced in argument. What is suggested in the appellant's first ground is that the trial judge ought, at his own hand, "to have conducted a trial within a trial to determine the issue of fairness". The trial judge had, in our view, no such obligation. If there was an issue of fairness with regard to the manner in which admissions or incriminating conduct had been elicited, it was for the defence, having knowledge of the basis for such a contention, to raise it and to raise it in the manner which it considered most appropriate in the circumstances. In the absence of a request for a trial within a trial (still an available procedure in 1973 - it was invoked in each of Murphy and Balloch) or an invitation to the judge to rule that evidence already led was inadmissible in law and should accordingly be for that reason disregarded, the trial judge had no obligation to give a legal ruling on admissibility. In Thompson v Crowe the vice was that the sheriff had denied the appellant's motion for a trial within a trial (see also Jeffrey v Higson 2003 S.C.C.R. 490). Nor, given the tactic adopted by counsel at the trial, are we persuaded that it is necessary for this court now to make its own determination as to whether, on the evidence, the incriminatory statements and actions by the appellant were admissible or inadmissible as a matter of law.

[32] In any event, we are satisfied that they were admissible. Although there was evidence that, to the investigating officer (DS Mortimer), the appellant seemed "a bit simple", there was nothing in the evidence to suggest that the treatment of him by the police prior to his giving to them an account of being present and seeing others attack the deceased was, due regard being had to his level of intelligence, otherwise than fair. That account, which was given spontaneously and was not itself the product of a series of questions, followed the appellant being pressed as to whether or not he had seen the deceased on the night in question. That pressure was, in the circumstances, quite legitimate and, although in giving the account the appellant was highly emotional, that state, while possibly going to the weight to be attached to the account, did not of itself indicate that the method by which it was obtained was unfair.

[33] Nor was there, in our view, unfairness attendant on the appellant's conducted visit to Colonel's Glen early on Thursday 12 July. We have had, in that connection, some concern about the circumstance that, the appellant having been cautioned and charged with murder and then arrested, he was not explicitly and immediately advised that he had the right (under section 17 of the Criminal Procedure (Scotland) Act 1887) to have the services of a law agent. But that statutory provision, which in its form in 1973 did not require that the arrested person be told of that right, appears to have been designed to ensure that a prisoner had the benefit of legal advice for the purpose of his appearance when brought before a court (HM Advocate v Goodall (1888) 1 White 1, per Lord McLaren at page 4). Moreover, it is clear on the evidence that the appellant on his own initiative suggested that he could show the police where and how the knife was cleaned and that, despite being repeatedly warned that he did not require to show the police anything, volunteered to go with them to Colonel's Glen where he pointed out various things which only a person intimately involved, as observer or participant, in the killing could have known. The law does not exclude admission of evidence of statements or conduct after a person has been cautioned, charged and arrested, provided that such statements or conduct are voluntarily given or undertaken (Manuel v HM Advocate 1958 J.C. 41; Miln v Cullen 1967 J.C. 21).

[34] In addressing the matter of fairness we have so far considered only factors of which evidence was adduced at the trial. When interviewed by Professor Cooke in 1994 and by Professor Gudjonsson in 1999, the appellant gave an account (reiterated in his first ground of appeal) that, while in the police office at Carluke, he had been physically abused by the police. No suggestion along these lines was made at the trial and there was accordingly no such basis upon which the trial court could find the appellant's statements or conduct inadmissible or lacking in weight. Nor is there any evidence, as distinct from an unvouched claim, before this court to give any credence to that version of events. In these circumstances it falls to be left wholly out of account - as indeed Professor Gudjonsson left it out of account in reaching a view as to the appellant's psychological state at the time of his final interview. In so far as other factors, bearing particularly on the appellant's vulnerability both generally and in the particular circumstances of 12 July 1973, are concerned, we address these in more detail in the context of the appellant's second ground of appeal (based on fresh evidence).

The sixth ground of appeal

[35] It is, however, convenient first to address the other grounds of appeal. Under ground 6 the appellant complains that in certain respects the trial judge misdirected the jury. The first complaint is that he failed to give a definition of the crime of murder. In the trial an issue had been raised as to whether, if the appellant had killed the deceased, his crime was, by reason of diminished responsibility, one of culpable homicide rather than of murder. No criticism is made of the judge's charge in that respect. There was no suggestion in the charge that, absent diminished responsibility, it was open to the jury, if satisfied that the appellant was the killer, to return a verdict other than one of murder. Nor was there any evidence which could have justified a verdict of culpable homicide on any basis other than diminished responsibility. It was undisputed that the deceased had been subjected to a ferocious attack involving, among other injuries, approximately 19 stab wounds distributed over the upper arms, the chest, the abdomen, the back and the back of the neck. Wounds to the upper body penetrated the chest wall and in turn penetrated the lungs. Wounds to the abdomen penetrated the liver, the stomach and the kidneys. There was a very marked degree of internal haemorrhaging, particularly in the chest. In these circumstances, absent diminished responsibility or insanity (which was not suggested), the crime was indubitably one of murder. It would have been wrong in law to leave open to the jury any other verdict. While it will generally be appropriate in cases where murder is charged to define for the jury the nature of that crime, there was no need in the circumstances of this case for the trial judge to do so. Mr Shead hardly pressed the point, which is clearly unsound.

[36] Of more substance is a contention that the trial judge did not give to the jury a direction on "mixed statements". No personal criticism can be made of the trial judge on that score. The trial long preceded the decision of this court in Morrison v HM Advocate 1990 J.C. 299, where a court of seven judges, relying in part on English practice, revised the rules as to the use of statements which included both incriminatory and exculpatory material.

[37] At the trial the judge opened his charge with familiar general directions, including a direction that the onus of proof was on the Crown and that it was for it to prove guilt beyond reasonable doubt. Having addressed various other matters, he continued:

"Then the question is of course whether the accused is the person who has been shown to have committed the murder. Well, I don't go into the detail of the timing. The first factor relied upon by the Crown was the accused was in or about that locality at or about the time of the murder; and that is really established, you may feel, beyond much doubt, because the girl left home about 7.50 or so, he was seen leaving his house about 7.40 and then he was next seen, I think by either Mr Friel [sic] or Mr Bryce, I don't really remember. Mr Friel I think was the youngish man who saw him in the street. He said he saw the accused about 8 o'clock or five past 8. Mr Bryce was the rather older man who had been planting something in his garden, dahlias I think, and who said the girl who brought the dahlias said it was ten past 8 and that was just a few minutes before he saw the accused, so he said he saw the accused about 8.15. Well, on any view, the accused was somewhere in the area between about ten minutes to [eight] and about 8.00 or perhaps 8.15; and that is the sort of time which is involved. If he saw the 8.03 train passing, which must have been a minute or two before 8.03, as he said he did, then that would pinpoint the time a little bit further. This is about the time when the girl apparently was murdered."

He then discussed certain evidence in relation to the timing of distances and concluded this aspect of his charge by saying:

"Well, it is for you to make what you think proper of the timing, but at the very highest you may feel all it does is get the accused in the area at about the time. It doesn't in itself go very far perhaps to prove that he was guilty."

He continued:

"We come now to the accused's own statements to the police and the things he pointed out to them on the morning of the Thursday, I think it was, in Colonel's Glen. It is for you, of course, to take into account the whole evidence and to take into account the fact that his earlier statements to the police were quite bare, and one of them said, 'I saw nothing suspicious'; and then he made this much more detailed statement to Sergeant Mortimer according to which he said he knew very much more than he had earlier admitted. It is for you to attach such significance as you think is proper to that."

[38] At no point does the trial judge refer to the "defence case", reminding the jury that corroboration of it was not required and that, if any aspect of it (including any account of events given by the appellant) raised with them a reasonable doubt as to his guilt, he was entitled to the benefit of that doubt. In the absence of a record of the defence speech to the jury it is difficult to be confident that there was a "defence case" - in the sense of a definite and positive account of events advanced on his behalf as to what had occurred. The appellant did not give evidence. His position at trial can only be inferred from the line of evidence taken by his counsel in cross-examination of Crown witnesses, in his leading of certain forensic evidence on the appellant's behalf and the (common law) submission which he made that there was no evidence sufficient in law to convict the appellant. Some further clues can be found in the judge's charge. It seems plain that, in his address to the jury, counsel (as well as urging them, if they were to convict the accused, to convict him only of culpable homicide) must have emphasised the weakness, as he saw it, of the Crown case - particularly, the absence of any scientific connection between the appellant and his victim or the weapon with which she may have been killed and the unreliability of such self-incriminatory words or conduct as came from the appellant. He had given four separate statements to the police. In the first two of these he had admitted walking through Colonel's Glen but noticing nothing untoward. In the third (to DC Semple) he spoke of being alarmed by something as he passed through the Glen, to tripping, to finding blood on his hand, to washing it off and to drying his hand with a paper handkerchief. In the last statement (to DS Mortimer) he spoke of witnessing the deceased being attacked by others. It is not clear which, if any, of these accounts (which at least in some important respects differed from one another) counsel urged the jury to accept. It seems that, despite its bizarre features, the last account was not abandoned, for the judge observed:

"He gave the story about six men appearing, which the police don't seem to have taken very seriously, and [counsel for the accused] quite correctly said that even if you disbelieve the story it does not prove the accused is guilty. The fact that a man tells a story which you think is rather absurd - if you do - doesn't mean that he is guilty. It is for you to make up your minds about the whole matter."

The judge at no point directed the jury to disregard as not available for their consideration any account given by the appellant extrajudicially.

[39] It was accepted before us by the Advocate depute that, for the purposes of this appeal, the common law as presently understood was to be taken as the law applicable at the time of the trial in 1973. That law includes the proposition that, where an extrajudicial statement of an accused person, led by the Crown in evidence, contains both incriminatory and exculpatory elements, the jury are entitled, as they think fit, to accept any part of its contents as evidence of what occurred. While there may be a question as to whether the first and second statements by the appellant were of a "mixed" character (on one view they might be regarded as being wholly exculpatory and accordingly not of themselves admissible evidence of the factual accounts given in them), it is clear that each of the third and fourth statements was of that character. Accordingly, statements in either of them which were capable of being exculpatory could be prayed in aid on behalf of the appellant.

[40] In that regard two aspects require to be addressed. Mr Shead focused primarily on what the appellant in his extrajudicial statements had said about when he had left his home. In the third statement he had opened his account with the words "I am not sure if it was four or five minutes to 8, it could have been ten to 8". In his first statement he had spoken of leaving home "at about 7.55pm" and in the second "at four or five minutes to 8". In his final statement he made no reference to when he left home. If these timings were accurate, Mr Shead submitted, it made it very difficult for the appellant to have met and killed the deceased, moved her body and scattered her belongings before being seen (by Mr Freel) walking in West Avenue (beyond the station) between 8.00pm and 8.05pm. Matters had been made worse, it was submitted, by the trial judge having referred to the appellant being seen leaving his house "about 7.40" and having stated to the jury that it was really established "beyond much doubt" that the appellant was in or about the locality at or about the time of the murder. The failure to remind the jury that the appellant in his extrajudicial statements, when he had no reason to suppose that timing was important, had put himself as leaving his home significantly later and to alert the jury to their right to accept that timing as truthful and accurate, amounted to a misdirection which had led to a miscarriage of justice.

[41] It is important to see the matter of timing in context. Naturally, the estimates of time were imprecise. The trial judge's statement that the appellant was seen leaving his home "about 7.40" was a reference to the evidence of John Sirrell, a neighbour of the appellant in Unitas Crescent, who testified that he saw the appellant leave his house and walk along the street towards the station at a time which "I reckoned was between twenty five minutes to 8 and quarter to 8". Other neighbours (Mrs Allan and her son Thomas) noticed him in Unitas Crescent going towards the station at ten to 8 on their clock; but it was thought that that clock was about 10 minutes fast. The evidence about when the deceased left home was also imprecise. Her mother spoke to her leaving "about eight minutes to 8", while a neighbour (Mrs Carlin) remembered that "it would be either a quarter to 8 or ten to 8".

[42] All that the Crown sought to do on this aspect of the case was to place the appellant in or about the locality at or about the time of the murder. As the trial judge put it to the jury - "at the very highest you may feel that all [the relevant evidence] does is to get the accused in the area at about the time". So far as can be discovered from the lines of cross-examination pursued and from the terms of the judge's charge, the defence at the trial did not seek to dispute that general proposition. There was, and can be, no suggestion that, by reason of any timing, the appellant could on the evidence positively be excluded as the killer. A defence approach along these lines is unsurprising when there was evidence that in casual conversation on the Sunday immediately following the killing the appellant told a neighbour (James Kelly) "... I must have been one of the last to see her ... I seen her on the path ...". There was hardly any cross-examination of that witness. It was not suggested to him that the appellant had not said words to that effect. There was no suggestion anywhere in the case that, if the appellant had spoken of such a sighting, it was a mere invention on his part.

[43] In these circumstances it appears not to have been an issue in dispute at the trial that the appellant was in the locality at or about the time when the deceased was attacked. While in more recent times a trial judge might have been expected to give a direction based on Morrison v HM Advocate (as subsequently qualified in McCutcheon v HM Advocate 2002 S.C.C.R 101), we are not persuaded that in the circumstances of this case any omission by the trial judge specifically to refer to the timings given in the appellant's extrajudicial statements led to a miscarriage of justice.

[44] One other aspect of the extrajudicial statements requires consideration. In his third statement the appellant gave an account of hearing, when he was in Colonel's Glen that evening, a noise in the bushes which gave him a fright; of running up the path but tripping on something; of slipping again; of finding blood on his hand, which he then wiped on water which was running down a fence wire; of drying his hand with a paper hanky. Blood found on paper handkerchiefs in the appellant's jacket pocket was subsequently analysed and found to be of the same (blood) group as the deceased's but of a different group from the appellant's. That evidence was critical to the Crown case, being the evidence on which it relied for corroboration of the appellant's statements and actings. The third statement was a "mixed" statement, capable of being incriminatory by placing the appellant in the general location of the deceased at about the time of the attack on her but also capable of an exculpatory interpretation, in so far as it implied that the appellant did not see the deceased at that time and that he possibly came in contact with blood of her blood group in an innocent way. The trial judge did not remind the jury that they could, if they thought fit, accept the appellant's narrative in his third statement as evidence of what occurred, including the innocent explanation of how he may have come into contact with that blood.

[45] Looking at the matter (as we must, given the Crown's concession) through 2009 judicial eyes, this submission has given us some concern. But we have come to the view that it cannot be said that, as a result of it, a miscarriage of justice occurred. The directions which were necessary to secure a fair trial depended on the dynamics of the actual trial, including the position adopted by the defence at it. It will be recalled that there was unchallenged and uncontradicted testimony that the appellant had told a neighbour (Mr Kelly) that he had in fact seen the deceased on the path in circumstances where he "must have been one of the last to see her". DC Lewis testified that, when being interviewed by him and DS Mortimer, the appellant had not only seen the deceased but "had actually run after her to carry her case". There is nothing in the cross-examination of the witnesses to suggest that the appellant at his trial was disputing that he had seen the deceased in the Glen. The positive evidence led by the defence was designed to suggest that there was no close contact between the appellant and the deceased, as there would have been likely to have been between her and her killer. This was wholly consistent with the defence case - in so far as a positive defence was advanced - being that, consistently with his final statement, he had indeed been present during the attack but as an innocent bystander. So far as can be inferred from the trial judge's charge, that was the position adopted on the appellant's behalf at his trial. If that be so, it would be unsurprising if his counsel did not seek, at least expressly, to found on the appellant's third statement, which was inconsistent with that final statement. In these circumstances a trial judge, even one with the benefit of Morrison v HM Advocate, would be slow to emphasise an exculpatory account which the defence had declined to adopt and which was inconsistent with the exculpatory account in fact adopted by it. In these circumstances we are, albeit with some hesitation, not satisfied that the omission to give a Morrison direction led in this respect to a miscarriage of justice.

[46] There being no other respects in which it was submitted that that omission led to a miscarriage, the appellant's sixth ground of appeal must be refused.

The third ground of appeal
[47] When the previous reference was made to this court, the Crown advanced an argument that this was a case of a self-corroborating special-knowledge confession. That argument was rejected, principally because at no stage did the appellant confess to having committed the murder: 1995 J.C. at page 50. The court did however hold that in his statements to the police the appellant showed such detailed knowledge that the only reasonable inferences to be drawn were either that he was a spectator throughout the incident or that he was the murderer. There was therefore sufficient evidence that he had the opportunity to commit the crime, although the evidence from which the inference could be drawn that he did commit it required to be corroborated. At page 51 the court said:

"In our opinion the jury were entitled to take the police evidence of what the appellant said and did together with all the other evidence and to draw inferences from all that evidence. ... On that evidence it was clear that the appellant had a very detailed knowledge of the way in which this crime was committed and where things were found. He knew what the deceased was carrying, what type of umbrella she had with her and where it was to be found after the murder, what the size, colour and straps were of her shoulder bag, the location of a knife at the locus which could have caused her injuries, that a ring had been taken from her finger and where it was to be found, the location of the body, including which side of the path it lay and how far along the path this was on the way to the station, where the suitcase had been thrown so that it was out of sight from the path after the incident and the various items which were inside the suitcase, which would have had to have been opened in his presence to reveal its contents. The only reasonable explanations for his coming into possession of all this knowledge were either that he had witnessed the crime and what was done afterwards or that he himself had committed it. No other explanation was suggested to us in the course of the argument. While the fact that all these things were already known to the police provided the opportunity for them to impart their knowledge of them to the appellant, or to attribute things to him which he did not say or did not do, no challenge was made on these grounds by the appellant's counsel when any of the police officers were giving their evidence at the trial. Their evidence on these matters was entirely unchallenged, except on the ground of fairness, which, as we have already said, the jury were directed to consider by the trial judge."

[48] The third ground of appeal seeks to advance reasons why this conclusion was unsound, principally because, it is claimed, there were means by which the appellant could have come into possession of the relevant information without having been at the locus at the time of the murder, either as the murderer or as an onlooker. Mr Shead suggested, in the first place, possible ways in which members of the public might, from visiting the locus or through the media, have come into possession of the relevant information which might then have been communicated to the appellant before he was interviewed by the police. We reject this approach as entirely speculative: there simply was (and is) no evidence that any of the matters of which the appellant showed such detailed knowledge were known to anyone other than the police officers conducting the investigation. If the appellant acquired the information by any means other than from his presence at the locus, it must have come from police officers.

[49] The ground of appeal refers to three specific matters. First, it is suggested that the location of the knife had already been marked on the sketch referred to at paragraphs [19] and [20] above before the appellant identified the location of the knife at the locus, as described at paragraphs [23] and [24]. Reference to the relevant passages in the transcript of evidence given by the police witnesses about the preparation of the sketch does not support the suggestion that the location of the knife was indicated on it before the appellant first showed knowledge of the location in the car on the way to Lanark police office. The sketch was lodged as a production at the trial. There is no indication, however, that the jury ever came to see it, and there was no evidence as to how it had come to be completed in its final form. It is sufficient for present purposes to state that the assertion that the location of the knife was shown on the sketch before the appellant offered to show where it was is not supported by the evidence.

[50] Secondly, it is suggested that the order in which the appellant mentioned the various objects which he had seen, as narrated at paragraph [20] above, coincided with the order in which these objects had already been listed in the production register kept at the police station. This is said to undermine the police evidence that the appellant simply volunteered information about these objects. At the hearing before us, however, Mr Shead did not seek to argue this point, and we need say no more about it.

[51] Thirdly, it is suggested that the information disclosed in the letter dated 11 July 1973 relating to the knife and the soil sample rendered it most unlikely that the knife was the murder weapon. We shall discuss this point fully in the context of the fourth ground of appeal. The absence of blood on the knife or in the soil sample does not lead to the conclusion, as is contended in this ground of appeal, that "it was most unlikely that this knife was the murder weapon". There were other reasons for concluding that it was the murder weapon, and the absence of blood merely precluded an additional means of linking the knife to the murder. What is significant for present purposes is that the appellant knew where a knife had been stuck in the ground. The absence of blood was consistent with his statements to the police about the knife being cleaned.

[52] We are satisfied that these matters do not serve to undermine the police evidence that the information in question was volunteered by the appellant, rather than being supplied to him by the police. This ground of appeal must therefore be refused.

The fifth ground of appeal

[53] In this ground of appeal, which is based on the terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, it is maintained that no reasonable jury, properly directed, could have convicted the appellant. As we indicated in paragraph [27], there is no suggestion in the present appeal that the evidence admitted at the trial was insufficient in law to convict the appellant of murder, which was a question which was dealt with in some detail in the previous reference to this court.

[54] To examine this ground of appeal we require to direct our attention to the evidence which was led at the trial of the appellant. In accordance with the statute we require to assume that that evidence was led before a jury which was properly directed by the trial judge. The fact that other juries might have acquitted the appellant is not enough. We have to be satisfied that a jury which convicted the appellant could not have been a reasonable jury.

[55] The principal evidence on which the Crown relied in seeking the conviction of the appellant for murder comprised evidence as to his opportunity to commit the murder; his knowledge of the location of the murder, a knife used to commit it, and the deceased's body and belongings; and the finding of blood matching that of the deceased on tissues in his jacket which resembled the one which he wore on the night of the murder. Mr Shead submitted that in the present case this court was not at a disadvantage in comparison with a jury which heard and had the opportunity to observe the witnesses, as it would be in a case which turned largely on questions of credibility. He concentrated on what he claimed were the weaknesses in the constituent elements of the Crown case.

[56] He maintained that the evidence as to timings was of great importance. He emphasised, in the light of the evidence as to the time when the appellant left his home and was seen by others before and after 8pm, how short was the time in which he could have committed the murder, moved the body and the deceased's belongings and removed any trace of the murder from himself. We note that the ground of appeal states that a gap of only 10 minutes was left by the appellant's "alibi". However, in the light of the evidence it is obvious that, whoever was the perpetrator, the murder must have been committed within a short period of time between the deceased entering the wood and the arrival of the train which she had intended to catch. As for the appellant, the evidence did not provide him with an alibi in respect of the murder. He could have reached the wood before the deceased did so. Whatever may be said about the timings, a jury would have before them the evidence given by James Kelly and the appellant's work colleagues that the appellant had said or accepted that he had been at the locus around the time of the murder (paragraphs [14]-[15]). We are therefore of the view that the evidence entitling the jury to accept that the appellant had the opportunity to commit the murder was significant.

[57] In this ground of appeal reliance is also placed on what is claimed to be "the unreliability of the alleged statements made by the appellant to the police and the way in which they were obtained". However, for the reasons which we have given in paragraphs [31] and [32], we are satisfied that the circumstances in which the appellant made those statements were not unfair. Thus, on the evidence before the jury, there is no good reason for us regarding them as unreliable.

[58] The ground of appeal goes on to criticise "the quality of the so called 'special knowledge' contents of the alleged statements". For example, it is asserted that the position of the body and the clothes were common knowledge at the time of the police interviews. However, the only basis which Mr Shead suggested for this was that, as we noted in paragraph [11], aerial photographs of the general area had been printed in the Daily Record newspaper of Monday 9 July, which is clearly insufficient. Furthermore, the assertion does not meet the point that in his statements to the police the appellant had displayed knowledge of articles which had been contained in the deceased's suitcase, and hence could have been known only to a person who was present at the time of the murder.

[59] Under this head reference is also made to "the evidence of the identification of the knife and the absence of blood which contradicted its use as the murder weapon". This clearly overstates the implications of the fact that no blood was found on the knife (see paragraph [51]). The absence of blood did not contradict the use of the knife as the murder weapon. It merely did not add to the Crown case against the appellant. There was no evidence before the jury that if it had been the murder weapon it would have had blood on it. In his final statement to the police the appellant had described the knife as having been stuck in the ground several times to clean it.

[60] The ground of appeal also relies on evidence that, in order to reconstruct his journey, the appellant had walked with two police officers to the locus on 10 July. However, as we pointed out in paragraph [17], this was after the deceased's body and all label productions, including the knife and the deceased's belongings, had been removed from the scene. Accordingly the appellant's walk to the locus would not have provided him with the means of acquiring knowledge in regard to these matters.

[61] Mr Shead supplemented these contentions by pointing out that there was no forensic evidence connecting the appellant with what happened at the locus, or connecting his clothing with the deceased, such as evidence of the transfer of hair or fibres which could show that he had been in contact with her. There was no evidence that he had any motive for killing her, or that he knew that she would be going through the wood to catch the train. There was no evidence that he had any prior connection with the knife which was found at the scene of the murder. Apart from the blood-staining on two out of eight tissues, there was no evidence of any contamination with blood of the appellant or his clothing. None of the witnesses, such as Freel and Bryce, who had seen the appellant after 8pm had noticed anything unusual in his manner or appearance. It was not unusual for him to go to the Gorrys to buy tomatoes on his way to work. However, as regards the last point, it seems to us to be important to bear in mind that, if the appellant had merely been an innocent onlooker at the time of the brutal murder of the deceased, it might likewise be said that his manner and appearance showed no sign of his having undergone that experience.

[62] The ground of appeal lastly criticises the quality of the corroborative evidence. Mr Shead pointed out that there had been no forensic evidence as to how the spots of blood had got on to the tissues. The blood group was a very common one. There was no direct evidence that the tissues were in the jacket which the appellant had been wearing on the night of the murder. A jury would have before them an innocent explanation for the presence of blood on the tissues, which was that it came about when he slipped and hurt his knee at the locus (paragraph [18]). However, as we have already noted, Mr Shead did not go so far as to maintain that the evidence as to bloodstains on the tissues could not provide corroboration for the case against the appellant.

[63] The jury would also, of course, require to take account of the fact that at no point had the appellant admitted his guilt, and that his statements to the police, and in particular the final one, he had stated that he was innocent. However, as was pointed out by Lord Justice General Rodger in King v H M Advocate 1999 J.C. 226 at page 238 a jury can reasonably reject evidence "precisely because it is inconsistent with the Crown evidence which they have decided to accept". Thus a jury could reasonably accept parts of the appellant's statements as supporting the Crown case while rejecting other parts in which he stated his innocence.

[64] The case for the Crown clearly depended on the jury being persuaded to make inferences. However, that is something which juries may reasonably do in their assessment of the evidence as a whole. The absence of evidence of motive was a factor which a jury would take into account, but its worth is limited, since the Crown does not require to prove motive, and it is not uncommon that no motive for a murder can be discovered. While there was no forensic evidence linking the appellant to the scene of the murder, a jury would have before them the striking evidence of the police witnesses as to his knowledge of the knife and the deceased's body and belongings, which they could take in conjunction with the evidence in regard to the blood on the tissues. While there was found to have been a very marked degree of internal haemorrhaging and there was some blood in the vicinity, there was no evidence that there was such an effusion of blood that the killer's person or clothing must have been markedly contaminated.

[65] Having considered the whole evidence we are satisfied that the circumstances relied on by the Crown were cogent, and that it cannot be said that the verdict of the jury was one which no reasonable jury, properly directed, could have returned.

The fourth ground of appeal
[66] As noted above at paragraph [11], on the afternoon of 7 July 1973 a number of articles were recovered from the locus. These included a knife, which was found stuck in the ground close to a broken cement post. It was first seen, soon after the body of the deceased had been discovered, by Police Constable Baker. Having drawn attention to it, he was told by his superior officer to leave it where it was. He gave evidence that the area where the knife was found was wet; it had rained all night. Under the direction of DCS Muncie the knife and other articles were photographed in the places where they had been found before being removed for examination. In addition to the knife, soil from around it was removed for examination. DCS Muncie took the knife out of the soil in the presence of a consultant pathologist, Walter Weir, and a chief medical officer, William McLay, who both subsequently carried out a post-mortem examination of the body of the deceased. They both expressed the opinion that the cause of death was multiple stab wounds, which could have been caused by the knife that had been found. The knife and the soil sample were both lodged as label productions at the trial (labels 4 and 68 respectively). Among the documentary productions was a joint report by two forensic scientists, Keith Eynon and Ian Shaw, production No. 14. This report certified, among other things, that on 24 July 1973 the knife was submitted to them for examination. The report stated: "The single-edged blade of the knife was 6in. in length and 13/16in. in width at its widest part. Nothing of note was found on the knife." Although various soil samples were submitted for examination, and were mentioned in the joint report, it does not appear that the sample, label No.68, was submitted for examination. Neither Keith Eynon nor Ian Shaw was called to give evidence for the Crown, but both were called as defence witnesses. The terms of their joint report were put to Keith Eynon. It was brought out that nothing of note was found on the knife. He confirmed, in summary, that his examination of all the various items which had been submitted for examination (including the knife) was negative. Ian Shaw gave brief corroborative evidence to the same effect.

[67] Production No.13 was a joint report by James Thorpe, a lecturer in serology, and Ian Hamilton, a scientific officer, both of whom were called by the Crown to give evidence about the findings on which they had reported. These related to blood samples which had been taken from the deceased and from the appellant, and to their examination of the bloodstains on the tissues found in the appellant's jacket, as narrated at paragraph [26] above. Not included among the productions, and not disclosed to the defence, was a letter Mr Hamilton wrote to DCS Muncie on 11 July 1973 reporting on his examination for blood of articles submitted to him on 9 July 1973. These included the knife, in respect of which he reported "No human blood present", and the soil from around the knife, in respect of which he reported "There was a cut, 13/8" wide at the top, running through the soil. No human blood present inside the cut". The letter concluded: "There was no corroboration on the above results and for any future report for the Procurator Fiscal the above productions will have to be re-examined." In the event, although the soil sample was lodged as a production, label No.68, it was not referred to in any report which was lodged as a production, and there was no discussion of it, or of the conclusions which might be drawn from the fact that no human blood was found to be present inside the cut, during the course of the trial. A ground of appeal relating to the non-production of the letter dated 11 July 1973 was considered and rejected by this court in the previous reference. The issue at that time related to information provided in the letter about the blood group of the deceased. We are not concerned with that issue. The issue which is now raised relates to information provided in the letter about the knife and the soil sample.

[68] It is appropriate to record at this stage that the Advocate depute informed us that the letter by Mr Hamilton dated 11 July 1973 was contained in the original Crown precognition bundle and was not lodged as a production at the trial because it was deemed to be of little significance. The Advocate depute went on to say that today it would be disclosed to the defence in advance of the trial, and he was content that we should proceed on the basis that it ought to have been disclosed prior to the trial. What we therefore have to consider is the practical consequences, if any, of the fact that it was not disclosed. Mr Shead maintained that the information in the letter about the knife and the soil sample was positive evidence which if it had been disclosed to the defence would materially have improved the position of the appellant. Failure to disclose it meant that counsel for the appellant was disabled from making a better submission on his behalf at the trial. If he had been able to make use of the information, it might just possibly have affected the outcome. Mr Shead was, however, unable to explain why this was so.

[69] As the Advocate depute pointed out, the knife and the soil sample were both lodged as label productions and were listed as such. The joint report by Mr Eynon and Mr Shaw, which related to their examination of the knife among other things, stated that nothing of note was found on it; and this report was lodged as a production. Both Mr Eynon and Mr Shaw were called as witnesses for the defence, and it was brought out that their findings were essentially negative. There was nothing on the knife to link it with either the deceased or the appellant. All that could have been brought out about the soil sample would have been to the same effect. In our opinion, once evidence had been led that the blood of the deceased was not found on the knife, it would have added nothing to that that her blood was not found in the soil into which the knife had been thrust, particularly as the jury were already aware from other evidence, including that of the police officer who found the knife, that there had been heavy rain before it was found. The main significance of the knife at the trial was, first, that it was found at the locus and could have caused the injuries to the deceased; and, secondly, that the appellant had said twice that the men he claimed to have seen killing the deceased stuck the knife in the ground several times to clean it, and the knife was indeed found stuck in the ground. We are unable to see that evidence about the absence of the deceased's blood in the sample of soil from the place where the knife was stuck in the ground would have added anything to the jury's deliberations. As the Advocate depute put it, the absence of blood signified nothing except that there was no blood; and that point was already before the jury.

[70] In these circumstances it is not necessary for us to consider at any length the potentially complex problems raised by legal submissions advanced by Mr Shead, to which, given his concession, the Advocate depute did not find it necessary to reply. It has for many years been one of the cornerstones of our criminal law that an accused person is entitled to a fair trial, an aspect of which is that the Crown has a duty at any time to disclose to the defence information in their possession which would tend to exculpate him. The position at common law was affirmed by this court, most recently and authoritatively, in McLeod v HM Advocate (No.2) 1998 J.C. 67. Reference may also be made to the decision of the Privy Council in McDonald v HM Advocate 2008 S.C.C.R. 954, per Lord Rodger of Earlsferry at paragraph 50:

"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 ..."

Although the present trial took place many years before the European Convention on Human Rights became part of our domestic law by virtue of the Human Rights Act 1998 and the Scotland Act 1998, Mr Shead nevertheless sought to rely on Article 6 of the Convention and to invoke the principle of equality of arms. He referred to the decisions of the Privy Council in Holland v HM Advocate 2005 1 S.C. (P.C.) 3 and Sinclair v HM Advocate 2005 1 S.C. (P.C.) 28 and to a series of subsequent decisions of this court, of which the most important is McInnes v HM Advocate 2008 S.C.C.R. 869. Reference was also made to McDonald v HM Advocate per Lord Rodger at paragraph 77, which Mr Shead submitted was not in conflict with the decisions in Holland and Sinclair. This court has recently granted leave to the appellant in McInnes to appeal to the Judicial Committee of the Privy Council, so it may safely be said that the law in this area is still a work in progress. It was on passages in Holland and Sinclair that Mr Shead based his submission that it was enough if disclosure of the information about the soil sample might just possibly have affected the outcome of the trial. In further discussion he submitted that it was enough if the material, if disclosed, was capable of having a material effect on the course of the trial.

[71] There appear to us to be considerable difficulties in the approach advocated by Mr Shead. In R v Lambert [2002] 2 A.C. 545 the House of Lords held that the provisions of the Human Right Acts 1998 do not apply to matters which occurred prior to the date on which that Act came into force. Decisions taken by courts or tribunals in England prior to that date cannot be impugned on appeal by virtue of section 6 of that Act. Reference may also be made to R (Hurst) v London Northern District Coroner [2007] 2 A.C. 189. Although Lambert is not binding on this court, it was expressly followed in Dickson v HM Advocate 2008 J.C. 181. Moreover, it is necessary to lodge a devolution minute when challenging an act of the Lord Advocate as being in contravention of the European Convention on Human Rights, and there is no devolution minute before us in the present case: see Mills v HM Advocate (No.2) 2001 S.L.T. 1359. Mr Shead did not address us on any of these authorities. Instead, he sought to persuade us that Article 6 is binding on us in the disposal of this appeal, and should therefore colour our consideration of the question whether the trial was fair. This raises very complex issues about retrospectivity. Mr Shead's submissions about these barely touched the surface and, given his concession, the Advocate depute found no need to reply to them at all. This being so, we prefer to reserve our judgment as to the approach to be adopted by this court in deciding appeals against convictions which took place before, in some cases many years before, the Convention became part of our domestic law.

[72] In the present case, the Advocate depute's concession allows us to look at a 1973 conviction through twenty-first century eyes and to conclude that, however the test is formulated, and even expressing it in terms most favourable to the appellant, nothing unfair resulted from the failure of the Crown to disclose the letter of 11 July 1973, by lodging it as a production or otherwise, because the information contained in it about the soil sample would have made no practical difference to the conduct of the trial or the jury's deliberations.

[73] For these reasons, the appellant's fourth ground of appeal must be refused.

The second ground of appeal

[74] It remains to consider the appeal in so far as based on fresh evidence. This is primarily raised by the second ground of appeal, which turns largely on views expressed by Professor Cooke and Professor Gudjonsson. It was for this reason, and for reasons related to it, that the Commission referred the appellant's case to this court. The Commission's conclusion was expressed in following terms:

"The Commission has considered current judicial attitudes towards such psychological evidence in both Scotland and England. It appears to the Commission that, in light of developments and advances made in the area of forensic psychology since the date of Mr Beattie's trial, there should be a reconsideration of the evidence led, with particular reference to the statements made by him. Investigations carried out by the Commission, particularly into the reports from Professor Cooke and Professor Gudjonsson, suggest that, in terms of the scientific methodology which can now be applied in cases of this type, Mr Beattie's statements may be regarded as unreliable."

[75] Professor Gudjonsson gave evidence before us, in the course of which he spoke to his report dated 3 June 2000. Professor Cooke did not give evidence but a joint minute was entered into by the parties in which it was agreed that in October 1994 Professor Cooke examined and prepared a psychological report in relation to the appellant. Certain aspects of his report dated 30 October 1994, to which we shall return, were agreed. Also agreed were certain other expert views. These were:

(1) That on 26 July 1973 (in advance of the trial) Dr Hunter Gillies, consultant psychiatrist, examined the appellant and prepared a report; that examination revealed inter alia that the appellant was an over-protected individual, a somewhat slow learner, with a tendency to provide elaborate descriptions for any incident; furthermore the appellant was emotionally immature and below average intelligence.

(2) On 6 August 1973 (again before the trial) the appellant was examined by Dr Rankine Good on his admission to Ward 18 of Hartwood Hospital under section 54 of the Mental Health (Scotland) Act 1960; Dr Good prepared a report of the same date; he found the appellant to be of below average intelligence.

(3) On 3 September 2008 Dr Gary Macpherson, consultant forensic clinical psychologist, prepared a report, which contained a true and accurate record of his findings and conclusions.

(4) An undated report was prepared by Dr James Baxter, which contained a true and accurate record of his findings and conclusions.

We shall return to Dr Macpherson's and Dr Baxter's reports.

[76] Professor Gudjonsson has given evidence as an expert witness in many cases in the United Kingdom and abroad. These occasions include an appearance as an expert witness before this court in the case reported as Gilmour v HM Advocate 2007 S.C.C.R. 417. He is currently Professor of Forensic Psychology at the Institute of Psychology, King's College, London, having after an earlier academic career been appointed as professor there in 2000. He has written several books with particular reference to the psychology of police questioning. He has devised and developed certain scales known as the Gudjonsson Suggestibility Scale (first published in 1983 and published in a revised version in 1987) and the Gudjonsson Compliance Scale. The Suggestibility Scale is concerned primarily to measure the extent to which an individual can be misled by leading questions ("yield") and how he or she responds to interrogative pressure ("shift"). Verbal memory and "confabulation" (the tendency to fill gaps in one's memory by producing imagined material) can also be measured on the Suggestibility Scale. The Compliance Scale, which by contrast with the Suggestibility Scale depends upon self-reporting by the subject of investigation, measures the tendency of an individual uncritically to go along with the requests of others.

[77] The appellant, who was 19 years of age at the time of his conviction, served thirteen years' imprisonment before being released on licence in August 1986. He thereafter obtained a PSV licence and worked as a bus driver. He was recalled to prison in 1992 and again released on licence in March 1995. He has remained at liberty since then.

[78] A number of persons have been concerned about the appellant's conviction. These include a journalist, Mr Peter Hill. Professor Gudjonsson was first introduced to the appellant's case by Mr Hill who, in about 1998, sent Professor Gudjonsson certain material and brought the appellant to see him. There was some delay in obtaining funding for Professor Gudjonsson to carry out tests on the appellant but these were eventually carried out in June and July 1999.

[79] Prior to this, and unknown to Professor Gudjonsson in 1999, the appellant had been interviewed and tested by Professor Cooke in 1994. Professor Cooke had also carried out psychological tests on the appellant. When tested for intellectual functioning on the Wechsler Adult Intelligence Scale (Revised) the appellant scored 78 for verbal functioning and 83 for performance functioning, an overall level of 80 - within the "below average" range. When tested by Professor Cooke on the Gudjonsson Suggestibility Scale the appellant obtained a "yield" score which placed him in the average range of the population. However, on "shift" he changed 14 out of 20 of his initial responses, well above the average - that is, he displayed an abnormal tendency to change his answers when subjected to interrogative pressure.

[80] When interviewed and tested by Professor Gudjonsson in 1999 the appellant scored on the Wechsler Adult Intelligence Scale (Revised) 84 for verbal functioning and 88 for performance functioning, an overall level of 85, again within the "below average" range. However, on being tested on the Gudjonsson Suggestibility Scale the appellant, while again scoring within the average range in "yield", scored 0 on the test for "shift" - that is, despite interrogative pressure, he did not alter any of the answers he had earlier given to the twenty questions in the test. We shall return in due course to discuss this contrast.

[81] Professor Gudjonsson was also able to draw a number of other conclusions from the Gudjonsson Suggestibility Scale results. These were that the appellant's recall of information given to him orally (in the form of a story) was well below normal limits, both for immediate recall and for recall after certain periods of delay; and that, after delayed periods, he "confabulated". Professor Gudjonsson also tested the appellant for "acquiescence" (a tendency when in doubt to answer a question in the affirmative), where his score indicated that he acquiesced abnormally. Professor Gudjonsson in oral testimony indicated that the results of this test raised questions about the extent to which the appellant understood questions put to him. In 1999 Professor Gudjonsson also carried out certain personality tests on the appellant. His conclusions, following the series of tests and the interview, were expressed as follows:

"1. Mr Beattie's intellectual abilities fall in the below average range. There is no reliable discrepancy between his verbal (83) and non-verbal (85) intellectual abilities. There was a reasonably consistent pattern of performance across the various sub-tests, although he performed particularly poorly on the Similarities sub-test. This suggests that Mr Beattie has problems with verbal concept formation and may be rather concrete in his thinking.

2. The verbal memory scores on the GSS 2 [the revised Suggestibility Scale] fell well outside normal limits and indicate that Mr Beattie has very poor verbal memory capacity and is worse than that expected from a person of his average intellectual abilities. The reason for his poor verbal memory is not known.

3. Mr Beattie produced abnormally high confabulation scores on delayed recall. After a six week period he produced about three times more confabulatory responses than accurate material. This suggests that he is exceptionally prone to filling gaps in his memory with imagined material.

4. Mr Beattie did not prove to be suggestible on testing, but his compliance and acquiescence scores fell outside normal limits. It suggests that he is eager to please, tries hard to avoid conflict and confrontation with people in authority, and when in doubt has a strong tendency to answer questions in the affirmative.

5. The scores obtained on the EPQ-R [a personality test] are all within normal limits. The profile is that of a stable introvert. The MMPI-2 [another personality test] suggests that Mr Beattie is somewhat introverted in his temperament and has poor self-esteem. Mr Beattie does indeed come across as a man of poor self-esteem. This could be the reason why he has the need to impress others and to tell 'tall tales'.

6. From the background information I have in the case it seems that Mr Beattie's abnormal tendency to confabulate and to tell 'tall tales' were present prior to his arrest in 1973. These factors, along with his poor self-esteem, eagerness to please, and tendency towards acquiescence, may well be highly relevant when considering what he allegedly told the police, which incriminated him (i.e. claiming he witnessed the murder and his apparent 'special knowledge')."

[82] As noted above there was a marked difference between the appellant's "yield" score when tested by Professor Cooke in 1994 and his score when tested by Professor Gudjonsson in 1999. Professor Gudjonsson in evidence discounted the possibility that this could be attributed to manipulation by the interviewee or to error by the interviewer. He indicated that over time, and in the light of personal experiences, an individual might become more "robust", that is, less likely to alter answers when under interrogative pressure. We are not persuaded that the marked differences in results on this test can be so readily explained. Professor Cooke did not give evidence, so that the particular circumstances of the carrying out of the test by him on the appellant could not be explored. However, on the assumption, which is a large one, that tests on suggestibility carried out in the 1990s can provide any useful basis for assessing an individual's suggestibility more than twenty years earlier, the inconsistency on face value between the test results in 1994 and 1999 makes it particularly difficult to reach a firm conclusion as to the extent, if any, to which the appellant, when being interviewed by the police in 1973, was liable to yield to any interrogative pressure from them.

[83] The difficulties in finding the fresh evidence of significance go, however, much deeper. A fundamental difficulty in drawing any conclusions as to the quality of the appellant's responses to questions from the police is that there is no verbatim record of the questions put and the answers elicited. That, as Professor Gudjonsson acknowledged, was "a huge disadvantage". As was the norm in 1973, there was no audio recording, far less video recording, of police interviews. The narratives which appeared in the notebooks of the respective policemen were composed by the officers from the interviewee's responses to questions, the content of which is not known. There was no suggestion at the trial that the narratives recorded did not faithfully reflect the account which on each occasion the appellant had given. There was no attempt to go behind the narrative and to explore what particular questions had led to particular answers. There was no suggestion at the trial that the appellant had been physically coerced into giving any part of the narratives which he gave. Although the appellant gave accounts to each of Professors Cooke and Gudjonsson that he had been bullied by the police, there is no evidence before us on which we could make a finding to that effect. Subject to one matter (to which we shall return) there is nothing before us to suggest that the police interviewing technique was challenging, rather than purely exploratory, in character. No doubt, if Professor Gudjonsson, armed with the techniques he developed only in the 1980s, had been available as a witness in the trial in 1973, it is likely that the police would have been examined more closely on the form of questions and answers which led to the narrative statements attributed to the appellant. But it is impossible now to know what would have emerged from that examination. It cannot be said - for it is pure speculation - that it would have elicited that the answers were given to leading or to forceful questions or otherwise did not constitute a true reflection of the appellant's own words. It is, and was, known that the appellant's ultimate acknowledgement to the police followed him being pressed, against his earlier statements, as to whether he had in fact seen the deceased. We discuss that below. But, as for the rest, it cannot be known whether a closer examination would have revealed a basis on which Professor Gudjonsson could have testified that particular answers were, or were likely to be, the product of shift or any other vitiating factor.

[84] Some aspects of the appellant's character at the time when he was interviewed by the police can be ascertained from information available at the time of his trial. Dr Hunter Gillies in his report recorded that the appellant's manner, mode of speech and general attitude were indicative of some immaturity and that his comments on matters pointed to a lack of sophistication. He continued:

"His intelligence is below average but he is not a mental defective. I gave him a formal test of intelligence which confirmed my estimate of his intellectual level. His mind was clear during my interview with him and he did not adduce any evidence to indicate his mind was not clear at the time of the alleged offence. His memory is good for immediate, recent and remote events."

Information derived by Dr Gillies from the appellant's brother suggested that the appellant had been somewhat over-protected by their mother and was perhaps somewhat slow in learning. The brother had also stated that the appellant had a tendency to provide elaborate descriptions for any incidents. The appellant's mother had told Dr Gillies that there had been a tendency for the appellant's imagination to run away with him. The appellant himself had told Dr Gillies that he had a strong imagination and that at times he imagined happenings that had not taken place.

[85] These observations are broadly consistent with the findings of Professors Cooke and Gudjonsson that the appellant's intelligence was, and is, somewhat below average for the population as a whole - but perhaps not below average for persons interviewed at police stations - and that he had a tendency to invention. Unchallenged evidence was led at the trial from Dr Gillies that the appellant was emotionally somewhat immature and that his intellectual capacity was "very, very slightly below the average, not significantly so". Although there was material available in Dr Gillies' report that the appellant had tendencies towards what might now be described as "confabulation", no attempt was made at the trial to lay a basis for the proposition that the appellant's accounts of events, or any parts of them, were inventions on his part. In particular, his accounts, both to Mr Kelly and in his final police interview, of having seen the deceased in Colonel's Glen were not challenged - by the leading of evidence from the appellant or otherwise - as concoctions on his part. In the absence of such a basis the leading at the trial of expert evidence of a tendency to invention would have been inadmissible (Blagojevic v HM Advocate 1995 S.C.C.R. 570). There is likewise no evidence before this court that the accounts given by the appellant of having seen the deceased in Colonel's Glen were in fact concoctions on his part which could be attributed by expert testimony to a tendency to confabulate.

[86] Both Professors Cooke and Gudjonsson found on testing that the appellant had a poor memory of the story given to him for the purposes of the tests they undertook. But, by contrast, Dr Gillies had reported that the appellant had a good memory for immediate, recent and remote events. The nature of what tests or enquiries he carried out on the basis of which he expressed that conclusion is not given in his report; but it may well have addressed the appellant's capacity to recall things in his personal experiences based on a range of senses, as against a narrative given to him only orally. There is no reason seriously to doubt that when the appellant was interviewed by the police on the days following the murder he was quite capable of recalling the salient events of what he had seen and done on the evening of 6 July 1973. The appellant's tendency to tell "tall tales" (in effect to confabulate) was known at the time of his trial. While his account of an attack by six men curiously attired might be, and might have been, attributed to that tendency, the incriminatory statement and actings fitted well with other aspects of the case.

[87] Professor Gudjonsson laid much emphasis on the circumstance that the appellant's emotional account towards the end of his final interview followed upon a question from DS Mortimer as to whether "he was quite sure that he hadn't seen Margaret McLaughlin that night". The question was put in the early hours of the morning after some hours of questioning at the police station. While that question, suggesting as it did that the appellant had seen her, involved a degree of pressure towards eliciting an affirmative answer, it cannot be seen in isolation. It followed upon earlier stages in the course of the interview when, in response to questions which were not suggested to involve pressure, the appellant had provided information which naturally led to the inference that he had seen the deceased in Colonel's Glen - as indeed he had earlier told Mr Kelly. While his eventual acknowledgement of this to the police may ultimately have been the result of a measure of pressure to which the appellant yielded, there is, in our view, no reason to suppose that that acknowledgement was otherwise than of the truth. Its truth was confirmed by the appellant's conduct at the visit to Colonel's Glen later that morning, when he was in a position to point out to police officers the location of items (including the knife, the deceased's body and the deceased's ring and her other belongings) which could only on the evidence have been known to a person who was present when she was attacked. Accordingly, even if we were to accept as accurate Professor Cooke's findings on shift (despite their apparent inconsistency with Professor Gudjonsson's findings on that matter) and to combine that at face value with Professor Gudjonsson's finding on compliance, these findings do not, in our view, begin to lead to an inference that the appellant's statement that he had seen the deceased was untrue. While, accordingly, the test results based on the Gudjonsson Scales, developed as they were some time after the appellant's trial, were evidence which was not heard at the trial (and for which there is a reasonable explanation of why it was not so heard), they are not, in our view, significant. They do not meet the test for a miscarriage of justice specified in Megrahi v HM Advocate 2002 J.C. 99 at para [219].

[88] None of Dr Macpherson's or Dr Baxter's findings and conclusions (which are essentially comments on the methodology used by Professors Cooke and Gudjonsson) persuades us that there has in this case been a miscarriage of justice. Ground of appeal 2 must be rejected.

[89] We add at this point, though with reference back to the discussion of the first ground of appeal, that the fresh evidence, in so far as it supports the general proposition that the appellant, by reason of his personal attributes or his situation when being questioned, was susceptible to giving inaccurate answers, cannot provide a satisfactory basis for the contention that his responses were unfairly elicited - in circumstances where the particular questions put to him by the police and his responses to them are unknown. That evidence cannot properly support the submission that the statements attributed to the appellant were inadmissible in law.

[90] We have considered the grounds of appeal not only individually but also cumulatively. We are not, however, persuaded that, taking the whole considerations together, the appellant has been shown to have suffered a miscarriage of justice or to have had a trial which was unfair.

[91] In the whole circumstances this appeal must be refused.