Lord Eassie

Appellant: Shead, Livingston; Hamilton Burns & Co

Respondent: Bain, A.D.; Crown Agent

23 January 2009

Introduction

[1] The appellant was prosecuted in the High Court of Justiciary along with a co-accused, Amy Anne Stewart, on an indictment libelling a charge of murder in the following terms:

"On 28 or 29 August 2003 at the pathway between Bain Street and Claythorn Park, Calton, Glasgow you JOHN JOSEPH HOPKINSON and AMY ANNE STEWART ALSO KNOWN AS AMY LEE STEWART, did assault Allan John Lennox, then residing at Flat 6C, 8 Silverfir Court, Glasgow and hold a knife against his throat, rob him of a quantity of money and strike him on the body with a knife all to his severe injury and did murder him."

After trial, both the appellant and co-accused were convicted of murder.

[2] In his report to this Court, the trial judge summarised the evidence which must have been accepted by the jury. He did so in the following terms:

"The deceased was aged 21 and was an apprentice electrician. He was an excellent worker and was due to complete his apprenticeship very soon. As part of his apprenticeship he had attended Cardonald College where he had been named as apprentice of the year. He had never been in trouble with the police. He lived with his mother and stepfather in the Gorbals. On 28 August 2003 he had been given his weekly wages of £193.00. They were given to him in a brown envelope. He did not often go out drinking but on that day one of his workmates was leaving and so he and a few friends went to a public house in the West End of Glasgow for a few drinks. He telephoned his mother to inform her of this, asking her to keep his supper for him and saying that he would be home about 10.30-11pm.

Shortly after 10pm the deceased left the public house with two of his friends and walked down West Nile Street towards Argyle Street. The friends broke off to go and get a bus and the deceased continued on his way. This was at about 10.15pm. It was estimated that he had probably spent £30-40 in the public house. The deceased was drunk but was able to walk in a straight line and talk coherently. He was not "steaming". On two occasions about this time the deceased telephoned on his mobile phone a former girlfriend whom he still kept in touch with every day by phone or text message. On the first occasion he sent a text message saying he was drunk and trying to get home. On the second occasion, at about 10.30pm, he said he had been out with friends but was now on his own and on his way home to get his dinner. That was his last known contact before he and the co-accused were seen going into the Blue Triangle hostel at 211 Gallowgate and up to the appellant's flat on the third floor. This was recorded by the video camera which was in the hostel. The time was about 10.50pm. The only evidence as to how he met up with the co-accused came from the co-accused herself. She was a prostitute and she said that he had approached her in the Gallowgate wishing to have sex and offering her more money than the £30 she normally charged. (To go via the Gallowgate was one way for the deceased to get home from Argyle Street). The co-accused said that she had agreed but then realised he had been drinking and became apprehensive. So she said that she would go with him to get her boyfriend (the appellant) who would come with them to see that she was all right. The deceased did not object and so they went to the appellant's flat. The co-accused had never done that before in the week or so that she had known the appellant. While they were in the flat - which the appellant shared with another man, Colin Daniels - the co-accused told the appellant that the deceased had some money and they hatched a plan to rob him of it. How this came to be and what precisely it was differed somewhat in the evidence given by the appellant and co-accused. The appellant said that the co-accused asked to speak to him privately in his bedroom. There she told him that the deceased had money and suggested that he rob him of it. The appellant said he was willing to do that. He invited Colin Daniels to join them but he refused. The appellant got dressed to go out and armed himself with a knife which he took from a knife block in the kitchen. The co-accused and the deceased were in the hall at this time and did not see him do that, although the appellant said that while they were in the bedroom he told the co-accused that he would take a knife in order to scare the deceased. The plan was, he said, to take the deceased somewhere and rob him of his money, using the knife to scare him. The knife was not otherwise to be used. He understood that the deceased was a customer of the co-accused but that in fact no sex would take place. The co-accused was to lure him to a secluded place apparently for sex but would play no other part.

The co-accused, on the other hand, said that after she had gone to the appellant's flat with the deceased she had asked the appellant to come with her while she had sex with the deceased, for her own security. Throughout a very long interview with the police (in the course of which, as she admitted in evidence, much of what she said was lies) and throughout her evidence on the ninth day of the trial she denied having a knife. The tenth day was spent by the parties' representatives investigating the video evidence in greater detail than had previously been thought necessary. Then over the weekend following the tenth day, having been shown video evidence which, on close analysis, appeared to show that she did have a knife, she accepted that she did have one. By this time she was being cross-examined by the Advocate Depute. She said that she had got the knife in the flat. It came from the same block as the knife which the appellant had. There was no plan to stab the deceased, however. She was to lure him and the appellant was to rob him.

The appellant, co-accused and the deceased then left the flat. They went to a chip shop in the Gallowgate near the hostel. The video camera recorded them there. They arrived shortly after 11pm. On the way there the appellant said that the co-accused had poked him in the leg with her knife to let him know that she had one. Until then he had not known that she had one. He indicated to her that he had one. The co-accused, having long denied it, when faced with the evidence from the video camera in the chip shop, accepted that the appellant's evidence on this point was the truth.

While in the chip shop all three made purchases. As the appellant had no money, the deceased gave him some to pay for a half pizza. They left the chip shop at 11.10pm, crossed the Gallowgate and headed towards a small park nearby known as Claythorn Park. By this time the deceased, perhaps realising that something was amiss, was repeatedly asking for a main road so that he could get to his home in the Gorbals. Why he should do this was not explained. He would almost certainly have known how to get home from the Gallowgate. In any event, he went into Claythorn Park with the appellant and co-accused. There, according to the appellant's eventual account in his police interview and also in his evidence, the appellant grabbed the deceased's jacket with one hand and with the other held his knife against his throat, telling him that if he gave them the money nothing would happen to him. The deceased said he hadn't got any money. He fell to the ground, in part stumbling and in part being put there by the appellant. Eventually the appellant got the deceased's wage packet from one of his back trouser pockets. He took the money out and was counting it when the co-accused stabbed the deceased. He thought the stab was to the top of one of his legs.

The co-accused's version of events in her evidence after she had accepted that she had a knife was as follows. She said that she stabbed the deceased when the appellant had the knife at his throat. It was not part of the plan that he should be stabbed. The deceased had not been robbed at that stage. It was very shortly before he was robbed. The deceased was trying to get up from the ground and she panicked because she did not know what he was going to do. She thought she had stabbed him on the leg.

Immediately after this the appellant and co-accused ran off. They left the deceased on the ground in Claythorn Park. They ran out of the park and up Millroad Street, which is to one side of the Park. A street CCTV camera recorded them doing this at 11.15pm. They stopped for a moment so that the appellant could hide the two knives in some loose ground (he later led the police to them). They then made their way to James Duncan House in Bell Street. Another CCTV camera recorded them there at 11.20pm. There they bought heroin with some of the proceeds of the robbery and then returned to the appellant's flat at the Blue Triangle hostel in the Gallowgate. The video camera recorded them arriving back at 11.30pm. Colin Daniels was in the flat. They told him what they had done. The appellant also gave him some of the heroin they had got. The appellant and co-accused left the flat together at 12.20am.

It was not until after midnight that the deceased was found in Claythorn Park. As it happened, the people who found him there were a man and another prostitute, Catherine Grant, who had not long before seen the two accused at James Duncan House in Bell Street and to whom the appellant had said: "We've just done a turn for money". They telephoned for the emergency services. In the meantime the man tried to resuscitate the deceased. Police officers were called to the scene at 12.20am and arrived shortly thereafter. The deceased was lying in a large pool of congealed blood. His body was cold, he was not breathing and there was no sign of a pulse. They also tried resuscitation. The ambulance was also called at 12.20am and arrived at 12.28am. It left the scene at 12.45am and arrived with the deceased at the Accident and Emergency Department of Glasgow Royal Infirmary at 12.50am. Although the deceased appeared to be already dead, further resuscitation was attempted but in vain. At 12.56am life was pronounced extinct.

.............

At about 1pm on Friday 29 August a friend of the appellant's, William Esdale, went to the appellant's flat. He met the appellant in the hall. The co-accused was in the appellant's bedroom. The appellant told Mr Esdale that he had missed out the night before. When he was asked what he meant the appellant rubbed his finger and thumb together to indicate money. It was known by this time that the deceased had been killed. Mr Esdale said that the appellant told him that he and the co-accused had killed him and had obtained money from him. That was why the police were in the area, which had been taped off. The appellant was quite high on drugs and indicated that he didn't care that they had killed the deceased. He also said that he had put a knife to the deceased's throat and robbed him and that the co-accused had stabbed him. He said the knives had come from the kitchen. The deceased's money had been in a brown wage packet and the money had been spent on drugs. Mr Esdale was shocked at what he had been told. He went into the living room, collected his girlfriend and left the flat. He approached police officers who were in Bain Street, which also borders Claythorn Park, and told them he had information about the killing. Another police officer later contacted him and took a statement.

Mr Esdale also said in his evidence that on 2 September 2003 the appellant was in his (Mr Esdale's) kitchen and took a knife from a block of knives there and showed him what the co-accused had done. He said the knives they had had were hidden and would not be found.

On 4 September the appellant was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. He was then interviewed under tape-recorded conditions. The tapes were played and a corrected transcript was distributed to the jury. After initially denying any involvement the appellant eventually admitted that what had happened was as he said in his evidence - except that it was only in his evidence that he said that it was on the way to the chip shop that he learned that the co-accused also had a knife. Towards the end of the interview the appellant agreed to go with the police to recover the knives. The interview was therefore interrupted while that happened. At the end of the interview the appellant was cautioned and charged with assault and murder and also with robbery. He admitted being involved in the robbery but denied stabbing the deceased. On 5 September at his Judicial Examination the appellant denied murder and stated that he wished to incriminate the co-accused. Prior to the trial he lodged a notice of incrimination. His position therefore remained consistent from the time of his confession during the police interview. He accepted that he had assaulted and robbed the deceased in the manner alleged in the charge but denied striking him on the body with a knife and murdering him.

On 4 September 2003 the co-accused was also detained and then interviewed by the police under tape-recorded conditions. The tapes were played and a corrected transcript was distributed to the jury. Despite changing her position repeatedly, she eventually conceded, when faced with the video evidence, that she had been with the appellant at the scene of the crime. She denied, however, that she had been party to any plan with the appellant to rob the deceased and she denied that there had been a robbery. The plan had been that when the deceased handed her the money for sex she would just take it but not have sex with him. She also denied that she had a knife and had stabbed the deceased. At one stage she said it was the deceased himself who pulled out a knife and assaulted her. She said that he had held the knife at her throat. The appellant had then pushed him and he had fallen and it was then that the knife had gone into his leg. She then took it off him. Later she said it was the appellant who had a knife, not the deceased and that the appellant held the knife at the deceased's throat, robbed him and stabbed him. At her Judicial Examination on 5 September she said she wished to make no comment when asked if she admitted the charge of assault, robbery and murder. She explained in evidence that she said that on the advice of her lawyer. Prior to the trial she lodged a notice of incrimination against the appellant. Her defence was conducted on that basis and her evidence was as stated above until on the morning of the eleventh day of the trial, after she had been confronted with the video evidence showing her in the chip shop with a knife in her cardigan pocket, she tendered a plea of guilty to the charge but to culpable homicide rather than murder. That was rejected by the Advocate Depute. She then continued with her evidence, agreeing that the plan with the appellant was to rob the deceased and that she had taken the knife for that purpose. She also agreed that she had stabbed the deceased but that was not part of the plan. The plan was that she was to lure the deceased and the appellant was then to rob him. She said the reason she had told lies was that she was trying to escape the consequences of what she had done.

Eventually, therefore, it was essentially clear on the evidence which of the appellant and co-accused had done what and the issues for the jury were relatively narrow. For the appellant it was accepted that he was guilty of assault and robbery but it was contended that he was not art and part in the stabbing and murder of the deceased. For the co-accused it was accepted that she was guilty of culpable homicide of the deceased but, it was contended, not of murder. From their verdicts it is clear that the jury rejected both these contentions."

Grounds of Appeal

[3] The original ground of appeal lodged on behalf of the appellant contended that there had been a miscarriage of justice in respect that:

"1. Brief Synopsis of Facts

1.1 The Appellant (the first named panel) and his co-accused (the second named panel) formed a common criminal purpose to assault and rob the deceased. In furtherance of that plan they armed themselves with knives [Judge's Charge: page 24, lines 12-18].

1.2 The Appellant's position was that there was a plan to rob the deceased, and he accepted that as part of that plan he armed himself with a knife, but claimed that the knife was to be used only to scare the deceased as part of the robbery. His position was that it was not to be used to injure the deceased, and that he in fact used his knife in that way by putting it to the throat of the deceased as part of the robbery, but did not injure the deceased [Judge's Charge pages 25-26, lines 24-9].

1.3 The Appellant claimed that it was unforeseeable by him that the second panel would stab the deceased and that he remonstrated with her when she unexpectedly did so [Judge's Charge page 26, lines 10-20]. That was his consistent position from part of the way through a police interview shortly after the event.

1.4 The Appellant accepted in evidence that on his way to the robbery he discovered for the first time that the second accused had acquired a knife but he did not foresee, and claimed he had no reason to foresee, that she might use it in the way that she did [Judge's Charge page 26-27, lines 21-1].

1.5 The second accused stabbed the deceased with a knife once in the lower right groin area. The blow penetrated the lower abdomen and cut the femoral artery, leading to death. This matter is dealt with in the Judge's Charge [pages 29-30, lines 9-2].

1.6 The fatal blow was approximately 8 centimetres long and did not require great force [Crown Pathologist Dr Tobias Hatter].

2. Legal Issues Arising from these Facts

2.1 The weight of the evidence was that the plan was to use the knives only to effect the robbery by scaring the deceased into parting with his money [Judge's Charge page 32, lines 14-22].

2.2 The Judge charged the jury that if it was within the scope of the plan, or foreseeable, that the deceased would be stabbed or might be stabbed, as opposed to being simply scared with the knife, then the Appellant was guilty of whatever crime the second pane was convicted of, whether that be murder or culpable homicide [Judge's Charge page 33, lines 8-23].

2.3 The Judge charged the jury that if it was not foreseeable that the deceased would be stabbed, the Appellant would be found guilty only of assault by holding a knife at the deceased's throat and robbing him [Judge's Charge pages 33-34, lines 24-10].

2.4 The Judge charged the jury that it was for the Crown to establish that it was foreseeable in the sense of being an obvious risk that the knives or one of them might be used to cause physical injury to the deceased, rather than only to scare him [Judge's Charge pages 35-36, lines 24-7, and again at page 36m, lines 8-16].

2.5 The Judge confirmed that the jury's task, so far as it concerned the Appellant, was to determine whether it was an obvious risk that the deceased might be stabbed. If so, he too was guilty of whatever the actor was guilty of [Judge's charge page 38, lines 4, 8-22].

3 Basis of Appeal

3.1 It is respectfully submitted that a third issue or possibility remained open to the jury, namely that the Appellant was guilty only of culpable homicide, notwithstanding any conviction in respect of the second panel. It is respectfully submitted that it was open to the jury to consider that a stabbing by the second panel might be foreseeable, but that the stabbing contemplated would fall short of a murderous one, as described in the Judge's charge at pages 29-30, lines 9-2, although greater than the anticipated use claimed for by the Appellant, namely merely to frighten the deceased. It is submitted that for a conviction for murder, it was necessary for the Crown to establish that it was foreseeable that the weapon 'was liable to be used 'with lethal effect' (emphasis added).
See the case of McKinnon v H.M. Advocate 2003 SCCR page 224, at paragraphs 30 and 31, at pages 238 and 239, copy attached."

[4] A supplementary ground of appeal was subsequently lodged and allowed by the Court. It was in the following terms:

"The trial Judge failed to direct the jury on the approach they should take to the appellant's pre-trial statements. It is submitted that these were mixed statements. That being so, the jury should have been directed that if they accepted the parts which exculpated the appellant of murder or if that evidence raised a reasonable doubt they should acquit the appellant. It is submitted that there was material in the statements which would have entitled the jury to acquit the appellant of murder.

Separatim. In any event the jury should have been directed that it was open to them to take account of the previous consistent statements when assessing the appellant's credibility. It is submitted that the direction given at page 26 was not sufficiently clear to alert the jury to the need to undertake this exercise.

Accordingly there has been a miscarriage of justice."

Submissions for the appellant

[5] In advancing the original ground of appeal, Mr Shead for the appellant described it as the primary ground of the appeal. He submitted that if the evidence before the jury in a murder case would entitle the jury to return a verdict of guilty of culpable homicide, as opposed to one of guilty of murder, the trial judge should include appropriate directions as to a verdict of culpable homicide in his charge to the jury. The question as to which verdicts may be open to a jury on the evidence that they had heard was not one on which the defence speech could bind or restrict the trial judge.

[6] Counsel drew attention to certain parts of the trial judge's charge including a passage on page 23 where he reminded the jury that the appellant accepted he had held a knife against the deceased's throat and robbed him of a quantity of money. The trial judge directed the jury that "(the appellant) is admitting his guilt of assault and robbery to that extent". Turning to the position of the co-accused the trial judge continued:

"The second accused accepts that she struck the deceased on the body with a knife with the one blow that caused his death. So she is admitting that she killed the deceased. Whether that killing amounted to murder in law or was culpable homicide is of course a major issue, but I shall return to that later."

[7] The trial judge then dealt with the basis on which the Crown sought a conviction of murder against each of the appellant and the co-accused. The trial judge suggested to the jury that having regard to the evidence they had heard from both accused they would have little difficulty in holding that there had been a common criminal purpose by the two of them to assault and rob the deceased and that in furtherance of the plan they had both armed themselves with knives. The trial judge then summarised the respective positions of the parties. The Crown's position was that the killing of the deceased by the co-accused had been murder. The Crown also contended that it had been foreseeable on the part of the appellant that the knife which the co-accused had in her possession was liable to be used not just to scare the deceased. Thus when the co-accused had stabbed the deceased, that made the appellant guilty of the killing of the deceased and of his murder, by application of the law of concert.

[8] The trial judge explained that in defence of the charge of murder the appellant accepted that there had been a plan to rob the deceased and that it had been part of the plan that he would arm himself with a knife, but that the knife was to be used to scare, as opposed to injure, the deceased and that he had only used his knife in that way. The appellant had consistently maintained that it had not been foreseeable to him that the co-accused would stab the deceased with the knife which she had in her possession, of which the appellant had only become aware on the way to the chip shop with the deceased.

[9] The trial judge also directed the jury as to the position of the co-accused, which included her admission of acting with the appellant in assaulting and robbing the deceased of a quantity of money in furtherance of a common plan between them. Although the co-accused admitted stabbing and killing the deceased, she disputed that had amounted to the crime of murder.

[10] Counsel for the appellant submitted that there were two other passages of the trial judge's Charge which were critical to this primary ground of appeal. The first begins at page 33, line 11:

" If at the end of the day you find it proved that it was within the scope of the plan or was foreseeable in the sense I have described that the deceased would be stabbed or might be stabbed, as opposed to just scaring him with a knife, then the first accused is guilty of whatever crime the second accused is convicted of, whether it is murder or culpable homicide (emphasis added). By reason of the application of the law of concert, he would then be as guilty of whichever crime it is, just as if he had done the stabbing himself.

If, on the other hand, it was not part of the plan, not part of the common criminal purpose that the deceased would be stabbed, and it was not foreseeable in the sense that I have described that he might be stabbed, then the Crown have not proved the first accused is responsible in law for the killing of the deceased and in that situation you would find him guilty of assaulting the deceased, holding a knife at his throat, and robbing him of money, but not the remainder of the charge."

At page 35, line 10 the trial judge continued:

" So in summary, ladies and gentlemen, the two principal issues you have to decide are these. In relation to the second accused, the principal issue is this: have the Crown proved beyond reasonable doubt that her stabbing of the deceased, and so causing his death, amounted to murder in terms of the second part of the definition I gave you?

If the answer to that question is yes, then you should convict her of murder. If the answer is no, then you should convict her of culpable homicide.

In relation to the first accused the principal issue is: have the Crown proved beyond reasonable doubt that it was either part of the plan, the common criminal purpose, or that it was foreseeable in the sense of being an obvious risk, that the knives or one or other of them might be used to cause physical injury to the deceased, rather than be used only to scare him?

I will just repeat that, because it is rather lengthy. The issue is: have the Crown proved beyond reasonable doubt that it was either part of the plan or common criminal purpose or that it was foreseeable in the sense of being an obvious risk that the knives or any one or other of them, might be used to cause physical injury to the deceased rather than be used only to scare him?

If the answer to that question is yes, then you should convict the first accused of the same crime as you convict the second accused whether it be murder or culpable homicide (emphasis added). If the answer is no, you should acquit him of the responsibility for the killing of the deceased."

[11] In advancing his submissions on this original ground of appeal counsel for the appellant referred to McKinnon v HM Advocate 2003 JC 29; 2003 SCCR 224; at paras. [25]-[32]; Touati and Gilfillan v HM Advocate [2007] HCJAC 73; 2008 JC 214; 2008 SCCR 211; at paras [28]-[31]; and R v Coutts [2006] 1 W.L.R. 2154, per Lord Bingham of Cornhill at para 12 and Lord Rodger of Earlsferry at para 82.

[12] The submissions advanced on behalf of the appellant in respect of the supplementary ground of appeal were limited in scope. Under reference to Thomson v HM Advocate 1998 SCCR 683 and Sneddon v HM Advocate 2006 SCCR 40, counsel for the appellant argued that the police interview of the appellant, which had been conducted on 4 September 2003, and what had been said by the appellant at Judicial Examination, the following day, had been mixed statements. The trial judge had failed to give the jury the directions which it was appropriate they should have received when such mixed statements had formed part of the evidence before them and which they required to receive in a case such as the present, where the accused had given evidence. In addition, the trial judge had failed to give the jury adequate directions on the extent to which the jury could rely on those parts of the pre-trial statements of the appellant which had been consistent with the evidence he had given during the trial.

Submissions for Crown

[13] In responding to the appellant's submissions, the Advocate depute submitted that the evidence led by the Crown had established a powerful case of antecedent concert to commit a robbery upon the deceased involving the use of knives. The assault and robbery upon which both accused had embarked had resulted in a murder. That was clear from the summary of the evidence set out in the trial judge's report. Amplifying upon what the trial judge had included in his report about what had been said by the appellant when the witness William Esdale had gone to the appellant's flat on 29 August 2003, the day after the deceased was killed, the Advocate depute informed us the jury had heard evidence that the appellant had said words to the effect that "We fucking done it and I don't give a fuck if he's dead". She also stressed that there had been a measure of inconsistency between what the appellant had said during his evidence and what he had said during his police interview. This she sought to demonstrate by reference to certain passages in her cross-examination of the appellant (see pages 168-175 of the transcript of his evidence).

[14] The Advocate depute argued that having regard to the evidence before the jury, and in particular the evidence given by the appellant, there had been no middle ground upon which it would have been open to the jury to have convicted the appellant of culpable homicide, whilst convicting the co-accused of murder. Even if that possibility had been raised by the solicitor advocate for the appellant, when he addressed the jury, the trial judge would have required to direct the jury that such would not have been an option open to them. In any event, even if there had been any misdirection on the part of the trial judge there had been no miscarriage of justice, because the case of murder against the appellant had been founded on very powerful evidence.

Discussion

[15] In considering this appeal we have available to us not only a transcript of the trial Judge's Charge but also transcripts of the speeches made to the jury by the Advocate depute; by Mr Burns, the solicitor advocate who defended the appellant at the trial; and by senior counsel who appeared for the co-accused. During her address to the jury, the Advocate depute raised the issue of whether the deceased's death was what the jury would say was a murder. She argued that was a matter for their community assessment, as the jurors in the case. She posed the question "Was this a murder or were the accused simply responsible for the deceased's death, culpable homicide?". She went on to indicate that the trial Judge would tell the jury about culpable homicide. She later said - "But if you consider the situation to be that the part played by John Hopkinson was only to scare and rob, then you may be able to convict him of the lesser crime of culpable homicide or, as he contends, only for robbery".

[16] When he addressed the jury on behalf of the appellant his solicitor advocate submitted that there was no evidence whatever on the part of the appellant at the outset of an intention to kill. He continued:

" - whether that be killing by way of murder or whether, as the Advocate Depute also says is open to you, by way of what our law calls culpable homicide. Now we use these words every day but if you just tease them together to their meaning, culpable means blameworthy, homicide means the killing of a person. So it is the blameworthy killing of a person and that of course is a serious crime, a very serious crime. The Crown say that when you look at all the evidence that is an option open to you. Well, of course it is but my submission to you, ladies and gentlemen, and I want to set out my stall at the beginning so that you know plainly where I am coming from and what I have to say to you is that at the end of the day, and in my life it has been a long day, the truth or 95 per cent plus of it has finally been run out and the truth is that John Hopkinson, as he has said, from that moment in front of the police when he realised the futility and pointlessness of what he was doing and decided to tell the truth, what he has said from then is that he is a robber, what he did was despicable, there is no difficulty about that, he saw a young man who no doubt like yourselves worked for that money and they thought 'we'll steal it from him and if he demurs I'll point a knife at him."

[17] In our opinion, it is clear from those passages that at the trial both the Advocate depute and solicitor advocate for the appellant acknowledged that it would have been open to the jury to convict the appellant and the co-accused either of the crime of murder or the crime of culpable homicide. The terms in which senior counsel for co-accused addressed the jury were also consistent with the possibility of such verdicts being returned. Furthermore there can be no dispute that as a matter of law it would have been open to the jury to have convicted the co-accused of murder or culpable homicide and to have restricted any conviction of the appellant to one of guilty of assault and robbery.

[18] When they addressed the jury neither the Advocate depute nor the solicitor advocate for the appellant explicitly raised with the jury, as possible verdicts, that the jury might convict the co-accused of murder and the appellant of culpable homicide. Nevertheless, it has to be noted that the transcript of the Advocate depute's speech to the jury (at page 16) includes the following sentence, which we have already quoted:

"But if you consider the situation to be that the part played by John Hopkinson was only to scare or rob then you may be able to convict him of the lesser crime of culpable homicide, or, as he contends, only for robbery".

Quite what the Advocate Depute intended by that submission, is not entirely clear.

[19] In his report to this Court the trial judge acknowledges that he did not deal in his charge with the possibility that the jury might find the appellant guilty of culpable homicide, notwithstanding their convicting the co-accused of murder. He informs this Court that was not an oversight on his part. He indicates that he was very conscious of the decision in McKinnon v H M Advocate. However, he explains that in his view a charge to a jury should deal with the issues in the case. In the present case, where the positions of the Crown and the appellant had been crystal clear, he took the view that it would not be helpful and probably not appropriate to canvass other theoretical possibilities with the jury. Indeed he ventures the opinion that, had that been done, and had the jury returned a verdict of culpable homicide in respect of the appellant, whilst convicting the co-accused of murder he, the trial judge, might well have been criticised by those acting for the appellant for introducing a possibility which neither the Crown nor the appellant wished the jury to consider.

[20] We have reached the conclusion that the trial judge erred in the approach he took. In our opinion, it would have been open to the jury to have convicted the co-accused of murder and the appellant of culpable homicide. The trial judge's decision not to direct the jury to that effect amounted to a misdirection. That possible effect of decision has to be considered in the context of the directions which he gave on pages 33 and 35 of his charge, which we have highlighted in the two passages we have quoted in paragraph [10] of this Opinion. In our opinion, these directions also amounted to misdirections. In both passages, the members of the jury were directed that if they held that the killing of the deceased had occurred in pursuance of a common criminal purpose, which had included the use of a knife not just to scare the deceased, but to inflict injury on him, or which it was foreseeable that a knife might be used to inflict injury, they should convict the appellant of the same crime as they convicted the co-accused, whether that crime be murder or culpable homicide.

[21] In our opinion the trial judge ought to have directed the jury along the lines discussed in paras [27]-[32] of the Opinion of the Court in McKinnon. The jury should have been directed that if it had been proved that the appellant and the co-accused had embarked upon a common criminal purpose to assault and rob the deceased with the use of knives, but that it had not been proved to their satisfaction either that the common criminal purpose had included the taking of human life or had carried with it the foreseeable risk that fatal injury might be inflicted, it would have been necessary for them to consider whether to acquit the appellant of any responsibility for the killing of the deceased, (which was the verdict the appellant sought), or to convict him of culpable homicide. The jury ought to have been directed as to the circumstances in which either of those verdicts would be open to them if they intended to convict the co-accused of murder or to convict her of culpable homicide.

[22] The directions to the jury should have made clear that they would require to consider whether any agreement between the appellant and his co-accused, relating to the use of knives, (a) had been restricted to the limited purpose of scaring the deceased, without there having been any foreseeable risk of injury being inflicted; or (b) had involved the foreseeable risk that a knife might be used to inflict some form of non-fatal injury to the deceased; or (c) had involved the foreseeable risk of the infliction of life-threatening injury to the deceased. The jury should have been directed that if the first of these alternatives applied the appellant could not have been convicted of culpable homicide; and that if the second or third alternative applied, such a verdict was available to the jury, provided they intended to convict the co-accused of murder or culpable homicide. It follows that there was more than one possible basis upon which the jury could have convicted the appellant of culpable homicide. For that reason, the opportunity of the jury returning such a verdict should not have been withdrawn by the trial judge.

[23] In our opinion the ultimate responsibility for explaining to a jury which verdicts are open to them rests upon the trial judge. That responsibility must be discharged by the trial judge irrespective of the positions adopted by counsel during the course of the trial and in particular during defence counsel's speech to the jury (see Touati at para [27]; and Coutts at paras 12 and 82). In passing we should note that in the course of preparing this Opinion, we have had the opportunity of reading the Opinion of the Court in Ferguson v HM Advocate [2008] HCJAC 71 (Unreported 25 November 2008), which was issued following the hearing in this appeal.

[24] It is clear from the speeches of the Advocate depute, the solicitor advocate for the appellant, and senior counsel for the co-accused that they all correctly anticipated the jury would require to consider, as among the possible verdicts, a verdict of guilt of culpable homicide in respect of each accused or against the co-accused alone. Likewise there was no dispute before us, nor was there any during the trial, that both accused could have been convicted of murder or of culpable homicide. However, as we have indicated, it was, as a matter of law, open to the jury to convict the appellant of culpable homicide whilst returning a verdict of guilty of murder against the co-accused. As we read the trial judge's report, he agrees with that view. In such circumstances, if, having heard the Advocate depute's speech to the jury, the trial judge apprehended that the solicitor advocate for the appellant might not address such a possible verdict, during the course of his own speech, then the trial judge could and should have alerted the solicitor advocate to the fact that he intended to direct the jury as to the availability of such a verdict.

[25] In these circumstances we have reached the conclusion that the trial judge misdirected the jury. In our opinion, the misdirections were material. We cannot be satisfied that if the correct directions had been given the jury would have returned the same verdict in respect of the appellant that they did. On the contrary we consider that the failure to give the correct directions resulted in the appellant being deprived of the opportunity of having a verdict of culpable homicide returned to his favour, in circumstances where the co-accused was to be convicted of murder. In our opinion that gave rise to a miscarriage of justice. In these circumstances we have reached the conclusion that the appellant's conviction of murder cannot stand.

[26] Standing the view that we have reached on the principal grounds of appeal, the issues raised in the supplementary ground of appeal are no longer of any practical significance. In these circumstances we have reached the view that it is not necessary for us to express any conclusions on them.

[27] In these circumstances, we will arrange that the appeal be put out for a further hearing to enable the Court to be addressed by the Advocate Depute and counsel for the appellant as to the course of action which ought to be taken in the light of our Opinion. At that hearing, it will be open to the Crown to move the court, if so advised, to authorise a fresh prosecution or for either party to move the court, if so advised, to substitute a verdict of culpable homicide for the verdict reached by the jury.