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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2005HCJAC137]

Appeal No: XC288/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

GEORGE McPHEE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

For the Appellant: Scott, QC, Shead; BCKM

For the Crown: Beckett, QC; Crown Agent

6 December 2005

Introduction

[1]In November-December 1985 the appellant was tried at Inverness High Court on 15 charges. Seven were charges of theft by housebreaking, six were charges of theft, one was a charge of assault and one was a charge of murder. We are concerned only with the murder charge. As amended at the outset of the trial, the charge was in the following terms:

"(6)on 24 September 1984 you did enter uninvited the house known as 'Dunrobin,' Culbokie, District of Ross and Cromarty and there assault Elizabeth Jessie MacKenzie or Sutherland, residing there, place your arm or hand around her neck, strangle her and did repeatedly cut and stab her on the neck and body with a knife and you did murder her."

[2]The murder was committed in the afternoon of the date libelled. The victim was a 36 years-old married woman. She had two children, one of whom, her 10 year old daughter, found her body on her return from school. This was a horrifying murder involving brutal violence.

[3]The police enquiry in this case was conducted by officers of the Northern Constabulary. The officer in charge of the enquiry was the late D Supt Andrew Lister. The scientific work was carried out by the forensic laboratory of Grampian Police. It was not until August 1985 that the appellant was arrested.

[4]The appellant lodged a special defence of alibi to the effect that at the relevant time he was in the Dundonnell-Braemore area with an associate, Colin Hawkins; but he withdrew that defence during the trial and substituted a special defence of incrimination in which he accused Hawkins of the murder. He was convicted by a majority verdict and sentenced to life imprisonment with a recommendation by the trial judge, Lord Hunter, that he should serve a minimum period of 25 years imprisonment. This recommendation was based on the nature of the injuries inflicted on the deceased.

[5]The appellant served 171/2 years of this sentence before being given interim liberation some months after the lodging of the Commission's referral.

[6]The Crown has conceded that the conviction cannot stand. It is for this Court to decide whether that concession is well-founded. In our opinion, it is.

The essential evidence

[7]The Commission has given us a thorough analysis of the evidence. We need not rehearse it in detail. It is sufficient to say that there was no forensic evidence linking the appellant to the deceased, to the murder weapon or to the locus. The Crown relied on (1) the eye witness evidence of Hawkins, (2) the evidence of a prisoner named Trevor Proudfoot that the appellant had confessed to the murder in a conversation with him when they were sharing a cell, and (3) evidence of footprints found outside and inside the house that were said to be linked to the appellant.

The evidence led before the withdrawal of the alibi

The footprint evidence

[8]On the day after the murder DS Ross and DC Birnie of the Identification Branch photographed four footprints in the vegetable patch in the garden. They made a cast of the most detailed of these. DS Ross concluded that the positions of the footprints indicated that the person who made them was running. Footprints made with soil were found on the carpet of the bedroom where the body was found.

[9]DS Ross suggested that the footprints in the garden appeared to have been made by the same person. It was difficult, because of movement, to pin down exactly the size of the footprint of which they had taken the cast, but in his opinion it was a footprint of a size 9 to size 10 type of footwear. DC Birnie corroborated the view that the four footprints appeared to have been made by one person. In relation to the size of the footprint from which the cast was made, he could say only that it appeared to be of a larger size than his own feet, which were size 71/2 or 8.

[10]DI Angus McQuarrie said that he had recovered a pair of shoes from the appellant in Porterfield Prison. The appellant had been wearing them when he had first seen him at Durham Police Station on 9 August 1985. These shoes were size 9. He said that when he saw him at Durham Police Station on 12 August 1985, Hawkins was wearing size 7 shoes.

[11]We should mention at this stage that Hawkins himself had said in a precognition on oath that his feet were size 8; but that point was not brought out at the trial

[12]After the appellant dropped the defence of alibi, D Supt Lister gave further evidence about the footprints. We shall refer to that evidence later.

The evidence in chief of Hawkins

[13]Hawkins said that he and the appellant were in Culbokie on the day of the murder. They had been on an expedition of theft and housebreaking. As they drove their van past the deceased's house, the appellant said that it was a "likely place to screw." The appellant turned off the main road and parked on a dirt track just past the house and less than 15 yards from it. He left the van and climbed over the fence between the van and the gable of the house. He looked through a rear window and entered the house by the back door. He was away for about 30 to 45 minutes. When he returned, he looked visibly shocked. He acted as though he had something on his conscience. His hands, which had been dirty, were now clean. His coat, which had been open, was now zipped up.

The evidence led after the withdrawal of the alibi

The appellant's new line of defence

[14]Hawkins concluded his evidence in chief at the end of the second day of the trial. On the following morning, counsel for the appellant was given leave to withdraw the alibi and to lodge the special defence of incrimination. Hawkins was then cross-examined on the basis that he committed the crime.

The evidence of Trevor Proudfoot

[15]Proudfoot said that sometime in August-September 1985 he shared a cell with the appellant in Porterfield Prison. The appellant told him that he had been questioned by the police about the Culbokie murder and he said "They'll never be able to get me for that." The appellant said that he had committed the murder but that they would be unable to prove it.

The evidence of D Supt Lister

[16]D Supt Lister said that the footprints outside the house were size 9 at least, and possibly size 10. He said that they had been made by the same person. He then said

"It was the same footprint in the garden as was in the house, and this was later confirmed to me, of course, by the lab."

There was no documentary or oral evidence to support this last assertion. D Supt Lister said that when he saw him in prison, Hawkins was wearing size 7 shoes. He confirmed that the shoes taken from the appellant were size 9.

[17]In cross-examination, he was asked about the size of the shoe that made the impressions in the soil. This was his evidence:

"Q -Can you be sure that the imprint that can be made in soft soil by a heavy type of shoe or boot can in actual fact look much larger than the shoe or boot maybe when it is not on the ground?-

A -This is a point that was brought to us by the lab. They said that it could be a size smaller than the actual print, that there was some slippage in the soft soil."

In re-examination, his evidence on the point was:

"Q -So far as the print in the soil is concerned did you at any stage consider whether this might have been made by Hawkins?

A -Oh yes, that is why I looked at his feet.

Q -And what conclusion did you reach about that?

A -That his feet were far too fine to have made the print we had in the plaster cast.

Q -By the Court: Far too what?

A -Far too fine, too small and narrow to fit the print in the plaster cast.

Q -Re-examination continued by the AD: Did you reach any conclusions as to whether McPhee might have made that print?

A -Yes, only insofar as McPhee's footwear was the right size, certainly not the footwear he was wearing but the size was right.

Q.-And so far as the print in the soil is concerned I suppose the manner in which that footprint was impressed in the ground would depend on a number of factors, is that right?

A.-Without a doubt.

Q.-They would depend firstly on the softness of the ground and otherwise?

A.-Yes.

    • Would it also depend on the weight of the person and size of the person?

A.-Yes, that would be true of any soil.

Q.-And it might also reflect the type of shoe?

A.-I don't think there is any question about that, it did appear a heavy soled shoe."

[18]D Supt Lister therefore offered opinion evidence which excluded Hawkins and pointed to the appellant as the maker of the footprint. He admitted that what he said was subject to the qualifications put to him in the exchanges that we have quoted.

The evidence of the appellant

[19]The appellant said that when he and Hawkins were driving towards the house, he saw the deceased walking along the verge towards Culbokie, coming from the direction of the house. He told Hawkins that there might be something in the house worth stealing. They stopped and parked the van behind the house. Hawkins went towards the house. After about 15-20 minutes, Hawkins returned and said "Let's get out of here. I've been caught." The appellant asked him "Did they get a good look at you?" Hawkins replied "No, I don't think so." Hawkins had a fair amount of blood on his shirt, jacket and trousers.

Sufficiency of evidence

[20]Even without the footprint evidence, there was sufficient in the evidence of Hawkins and Proudfoot to entitle the jury to convict; although, as the Commission convincingly explains, and as the transcript shows, these unsavoury individuals had serious problems of credibility.

The trial judge's charge

[21]The trial judge approached the evidence on the view that when the special defence was changed, the footprints became a key issue. He pointed out that while the appellant was pleading alibi, the footprints might not have been of any material importance, since they could have been made by anybody; but that once the appellant admitted that he and Hawkins were at the locus at the material time, the question became in substance which of them was the intruder. In our view, that approach was correct.

[22]The trial judge dealt with the footprint issue in the following way:

"Now, when the case is presented that way, if you reach that stage, and it is always if you reach that stage, the respective sizes of shoes worn by the accused and Hawkins, and their relation to the footprints found in the vegetable patch, you know, the four footprints, may become of very great importance, and the Crown maintain that the footprints in the vegetable patch were of a size 9, possibly 10, and they refer to the evidence of DS Ross, the Scene of Crime Officer, and D Supt Lister in that respect, who say it was the same person and that they were of a size 9, possible 10.

There is evidence from other police officers, I think MacQuarrie, Lister and Lowson, that the shoes being worn by the accused when he was brought north, were size 9, and there is evidence I think - although I don't think it was very clearly put - that Hawkins was wearing shoes when brought north, or before he was brought north, of size 7, and D Supt Lister - a very experienced officer - did say according to my note of his evidence, but it is for you to remember, that Hawkins' foot was far too fine, small and narrow to have created the impressions that were in the vegetable plot.

So, ladies and gentlemen, you will have to bear in mind what was said by either side in this regard, but I do think it is necessary that I should point out to you that if you reached the stage where it is a choice between two men then this evidence, which might not have counted for much if the alibi defence had been persisted in, may be of a little importance, but it is for you to decide what you make of it."

It is apparent therefore that the trial judge put the Crown case on the footprint evidence at its highest, mentioning none of the qualifications that D Supt Lister had to attach to the opinion that he gave.

The appeal

[23]There was an appeal on the grounds that the verdict was perverse and unreasonable and that the trial judge misdirected the jury. The appeal was heard on 24 June 1986 and refused. The case is not reported. There is no Opinion of the Court in the records of Justiciary Office. We infer from such records as there are that the appeal was refused in summary fashion.

The Commission's Referral

[24]The Commission has concerns regarding all three strands of the Crown case. These are its concerns about the credibility and reliability of Hawkins and Proudfoot.

"126.The Commission has serious concerns regarding the credibility and reliability of the evidence of Mr Hawkins. He substantially altered his position as to his and the applicant's whereabouts on the day of the murder in the five statements he gave to police officers. The Commission is not aware of any good reason for Mr Hawkins changing his position in his statements or of any attempt by Northern Constabulary to question him about his changing position. The Commission is unable to ascertain for certain that the Crown made full disclosure to the defence of Mr Hawkins' change of position. The evidence found in his Crown precognition and his precognition on oath, and that which he gave at trial is not entirely consistent with or supported by that of other witnesses. His description of the locus of the murder is poor. The Commission is of the view that had the full circumstances of Mr Hawkins' involvement in the conviction of the applicant been known to the jury, this would have had a material impact upon the jury's consideration of the evidence Mr Hawkins gave at trial.

127.In his dealings with the Commission, Mr Proudfoot has freely and frankly admitted that at that time of the murder and during the subsequent police inquiry he was abusing illegal drugs and that this affected his recollection of events, both subsequent to and at the time of the 'confession.' The procurator fiscal was sufficiently concerned about Mr Proudfoot's ability to recollect events accurately that he communicated this fact to Crown Office. Despite having been given the opportunity to read a transcript of the evidence he gave at the trial, Mr Proudfoot was unable to match this with his own recollections of that evidence. The court was not made aware of Mr Proudfoot's drug related difficulties. The Commission accordingly has concerns as to the reliability of Mr Proudfoot's evidence. The Commission is of the view that it is arguable that Northern Constabulary offered Mr Proudfoot inducements to give evidence and that he was given information about the murder of Mrs Sutherland by them. The Commission notes that Mr Proudfoot was moved from his usual 'double' cell in HMP Porterfield to a dormitory type cell for twenty-four hours only. For approximately three hours of that time the applicant was placed in the cell with Mr Proudfoot and it was during that time that the 'confession' was said to have been made. The Commission has obtained an affidavit from Ronald Thomson regarding the placing of the applicant in the cell with Mr Proudfoot, discussed at paragraphs 89 - 92 above. The Commission is of the view that Mr Thomson is a credible and reliable witness. Mr Proudfoot has expressed doubts to the Commission as to his certainty about hearing a 'confession' from the applicant. Accordingly, the Commission has serious concerns regarding the credibility and reliability of Mr Proudfoot as a witness in this case."

Having considered the question of the appellant's credibility in relation to his alibi, with which we are not now concerned, the Commission comes to the following conclusions.

"141 ... However, the Commission has particular concerns regarding the credibility and reliability of the material elements of the Crown case. These concerns are made acute by the fact no forensic evidence exists to link the applicant to the deceased, the murder weapon or the locus of the crime. While there is no requirement for the Crown to adduce any such evidence, the Commission is of the view that the lack of such evidence brings the credibility and reliability of the Crown witnesses into sharp focus. The Commission is of the view that the whole circumstances in which the evidence of Mr Hawkins and Mr Proudfoot was obtained was not properly before the jury or the High Court at appeal. The Commission is further of the view at [sic] the way in which the evidence of the police officers regarding the footprints was presented to the jury by the Crown in the absence of the available evidence from the forensic scientists as to its unreliability resulted in unfairness to the applicant. The Commission is of the view that had these circumstances been ventilated and the additional evidence and material been before the jury, this would have been of material assistance to the jury in determining the material issues at trial.

This last aspect of the Commission's concerns has led the Crown to concede the appeal.

Evidence that has come to light

[25]The Crown has discovered that the police prepared a number of life-size photographs of the footprints and took measurements from them. It seems likely, although it is not certain, that the Grampian Police Laboratory was given all of those photographs. It also seems likely that an informal view as to the size of the shoe that made the print was formed by at least one of the scientists in the laboratory. But no record has been found to demonstrate that the laboratory scientists ever concluded that the shoeprints were made by a shoe of any particular size or range of sizes. During 1984 and 1985 a number of pairs of shoes belonging to potential suspects were examined in relation to the cast and the photographs, with negative results.

[26]By letter dated 5 November 1985 the procurator fiscal at Dingwall, Mr Steel Carnegie, wrote to the Chief Constable of Grampian Police requesting that further work be undertaken by the forensic laboratory. He said

"I am having sent through by Detective Chief Inspector Johnston a plaster cast and a pair of shoes and I understand that Detective Chief Inspector Johnston has arranged for the comparison of the shoes with the cast and the measurement of the shoe for foot size."

It seems that the procurator fiscal thought that these shoes had been worn by the appellant, although the evidence for that was rather weak.

[27]On 8 November 1985, the Chief Constable replied to the procurator fiscal on this point as follows.

"In the case of the footprint plaster cast, Detective Inspector Jensen has informed me that the footprint represented in the cast is incomplete in that only part of the heel is visible. The shape of the cast indicates that a double, if not triple, application has occurred. The pattern associated with the second - and, if present, the third - application merges into the main impression and makes the interpretation of size impossible. Nor is it possible to state with confidence whether the footprint in the cast was made by a left or right shoe."

The Commission found this letter in the procurator fiscal's file. There is no copy of it in the Crown Office file. It contradicts the evidence of D Supt Lister. The Commission reports on the point as follows:

"117.The legal officer assigned to this case spoke to the scientists Ian Wilkie and Eric Jensen responsible for the examination of the plaster cast at Grampian Police Laboratory. They confirmed that despite their training, knowledge and expertise they were unable to state the size of the shoe that made the impression in the plaster cast. They had regard to the photographs taken of the footprints, but due to the impressions being incomplete and the photographs being inconclusive they were unable to state the shoe size. They were not in a position to say what type of foot could have made the impression. The scientists clarified that the muddy footprints found within the house were not 'distinctly different' from the cast and photographs provided from the garden."

This too contradicts the evidence of D Supt Lister as to shoe size; and the last sentence of this paragraph is at variance with his unsubstantiated assertion at the trial that the internal and external footprints had been made by the same person and that this had been confirmed by the laboratory. Neither DI Jensen nor Mr Wilkie was called at the trial.

[28]The Crown confirms that the advocate depute was unaware of the contents of the Chief Constable's letter dated 8 November 1985. If he had been, he would not have allowed D Supt Lister to give the evidence that he gave.

[29]The Commission comments on the evidence of D Supt Lister and DC Ross as follows.

"118.The findings of Grampian Forensic Laboratory in connection with the footprint evidence were communicated to Northern Constabulary. At the time of his giving evidence D Supt Lister had twenty-nine years' police service. He was in charge of the inquiry into the Culbokie murder. The evidence of the footprints was a major line of enquiry. The Commission is of the view that it is reasonable to infer that D Supt Lister as the most experienced officer and the officer in charge of the enquiry, would have been made aware of the report from Grampian Police Laboratory. While it is noted that D Supt Lister may have acquired particular skills in certain areas through his experience as a police officer, given the fact that scientists trained in the examination of such footprints could not state, for example, the size of the print, the Commission is of the view that such evidence from D Supt Lister was outwith his expertise, and if it were given in the knowledge of the report, it was clearly disingenuous. The shoeprints were not complete. In order to state accurately the size of the shoe that made the print, one would have to estimate and extrapolate from other characteristics of the shoe print. In the opinion of both of the experienced and trained scientists who examined the available evidence regarding the shoeprints, this was not possible. The Commission is of the view that it was inappropriate for D Supt Lister and DC Ross to give evidence about the shoeprints in the way that they did. Such evidence related to a material issue at trial."

[30]The Commission's inference that D Supt Lister would have been aware of the report from the Grampian Police Laboratory has been shown to be correct. The laboratory staff seem to have interpreted the procurator fiscal's letter of 5 November 1985 as a request to size the cast itself. The answer that they gave is set out in a laboratory report dated 14 November 1985 that was found at the Grampian Police Laboratory this year. It relates to two productions, the plaster cast and the appellant's shoes. The material part of it is as follows:

"Details of case and examinations required

Request from PF that plaster cast of footprint already examined be re-examined and opinion if any expressed in relation to size.

Results of examination

Nothing to be gleaned from cast in terms of size etc - report to PF D'wall - copy filed under B140/85."

This report is initialled by Mr Wilkie. D Supt Lister has counter-signed it, acknowledging receipt, on 14 November 1985. That was less than three weeks before he gave evidence. There is no evidence that the Crown was in possession of this document before this year.

[31]DI Jensen has found a sketch of the cast that he prepared some time in 1984. The sketch relates to the pattern characteristics of the footprint; but DI Jensen has written on the sketch "size ?"

The Crown's conclusion

[32]We are indebted to the advocate depute for his meticulous explanation of the Crown's position. The Crown's overall conclusion is that it is possible and perhaps likely that someone in the laboratory, perhaps DI Jensen, informally suggested to the police that the shoe that made the print was size 9 or 10. DI Jensen is content that this would not be an unreasonable judgment. However, Mr Wilkie wholly rejects the validity of the opinion evidence that was given. DI Jensen's own sketch bearing the word "size ?" suggests his own lack of confidence on the point. The Chief Constable's letter of 8 November 1985, and the doubts of Mr Wilkie that seem to underlie it, should have been disclosed in the light of D Supt Lister's evidence.

[33]The advocate depute summarised the Crown's position as follows:

"Opinion evidence relating to footprints found outside the locus on the day of the murder was presented which, in the light of what is now known, ought not to have been presented or at least ought not to have been presented without disclosure of contradictory material. The material in question was not known to the advocate depute who conducted the trial. At this distance it is not clear why the material was not made available to him. It should have been made known to him, but it would not have been obviously relevant prior to the change of line of defence after the start of the trial. What is clear is that had the advocate depute known of the material in question he would not have led the evidence in question.

In charging the jury, the trial judge gave that evidence a central significance."

The advocate depute made no submission as to the credibility or reliability of Hawkins or Proudfoot or on the question of misdirection. He said that, in light of the new information about the footprints, the Crown could not support the conviction.

Submissions for the appellant

[34]Senior counsel for the appellant submitted that there were other factors in the case that she would have wished to have considered, including the conduct of D Supt Lister, and in particular the mention of a reward by him to Proudfoot; police pressure on and inducements to Proudfoot and a fellow prisoner, Ronald Thomson, who is referred to in paragraph 127 of the referral (supra), and the five inconsistent police statements now known to have been made by Hawkins. In the circumstances, she did not pursue these matters.

Conclusions and decision

[35]In our opinion, there has been a grave miscarriage of justice. The key issue, in our opinion, is the footprint evidence. The evidence of DS Ross and DC Birnie on the point was led without objection, although neither was qualified to express the opinion that he gave; but at that stage of the trial counsel for the defence was, we think, entitled to regard the footprint evidence as a side issue. That it later became crucial is entirely the responsibility of the appellant himself.

[36]In our view, the miscarriage of justice in this case lies in the footprint evidence that was given by D Supt Lister. That evidence ought not to have been given.

[37]Why the Chief Constable's letter to the procurator fiscal dated 8 November 1985 was not passed to Crown Office, as appears to be the case, and why a copy of the laboratory report dated 14 November 1985 was not submitted to the Crown, as also appears to be the case, are not questions that we need explore. We need only assess the significance of D Supt Lister's evidence and the effect upon it of the information that has since come to light.

[38]We conclude that D Supt Lister's evidence that the laboratory confirmed his view that the footprints inside and outside the house were made by the same person was simply untrue. His evidence as to the size of the footprint was untrue and was contradicted by the Chief Constable's letter dated 8 November 1985 and by the laboratory report dated 14 November 1985. D Supt Lister must have known of the letter of 8 November 1985. He certainly knew of the laboratory report that he received and counter-signed. He can scarcely have forgotten about these documents. These documents cannot have been in the possession of Crown Office. Why they were not will probably never be known. If the trial advocate depute had been in possession of them, he would not have allowed D Supt Lister's evidence about the footprints to be given.

[39]The advocate depute submitted to us that the overall impression was that D Supt Lister was not acting in bad faith. We find that difficult to accept. But that is not the question in these proceedings. Whether D Supt Lister lied or had a lapse of memory, he spoke with the authority of a senior police officer. At that stage the footprint evidence had become crucial. The scientific evidence that disproved what he said was not brought to the notice of the advocate depute, the defence or the jury. The trial judge told the jury that the evidence about the footprints in the vegetable patch might become "of very great importance" and he reminded them that D Supt Lister was "a very experienced officer." In our view, D Supt Lister's evidence was vital to the jury's consideration. It was untrue. Therefore, in our opinion, the appellant did not receive a fair trial.

[40]We conclude therefore that the Crown's concession is well-founded. We shall allow the appeal and quash the conviction.