Lord Justice General

Lord Carloway

Lord Bonomy

[2012] HCJAC 45

Appeal No: XC670/08












Appellant: Scott, Q.C., Shead; PDSO, Inverness

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

3 April 2012

The murder
[1] On the evening of 2 June 1994 Shamsuddin Mahmood, a Bangladeshi national, was working in the course of his employment in the Mumutaz Indian Tandoori Restaurant, Bridge Street, Kirkwall, Orkney. At about 7.15pm as he was serving a meal to a family of adults and children dining there a male, with his face masked by a balaclava, entered the restaurant, marched up to Mr Mahmood and shot him in the head with a handgun. He died almost instantly. The assailant promptly left the restaurant.

The procedure
[2] In May and June 2008 the appellant stood trial for that murder. A circumstance which may have contributed to the long delay in bringing the prosecution was that a witness, William Grant, informed the police only many years after the murder that he was in a position to give incriminating evidence against the appellant. The Crown authorities may have taken the view that, without that evidence, a prosecution was not justified. Grant gave evidence at the appellant's trial. He was a less than satisfactory witness. In his address to the jury counsel for the appellant submitted that the trial judge should direct the jury that, if they did not accept Grant's testimony, they were bound to return a verdict of acquittal, there being insufficient evidence in law without it to allow a guilty verdict to be returned. The trial judge declined to give such a direction. He expressly directed the jury that, as a matter of law, there was a sufficiency of evidence even without Grant's testimony.

[3] The appellant having been convicted of the murder, and of a related charge of attempting to defeat the ends of justice, appealed against conviction and also against the sentence imposed by the trial judge (life imprisonment with a punishment part of twenty five years). One of the grounds of appeal lodged was a challenge to the judge's direction referred to above. At the appeal hearing, however, Miss Scott, who then appeared for the appellant, abandoned a number of the stated grounds of appeal against conviction, including that challenge. It was thus conceded that, absent Grant's evidence, there was sufficient evidence in law for the jury to consider. That concession was clearly, in our view, correctly made. Miss Scott also abandoned the appeal against sentence. The remaining grounds of appeal against conviction were two: (1) Ground 9 (against a refusal by the trial judge to allow certain evidence from a psychologist to be adduced by the defence) and (2) an additional ground of appeal (contending that the appellant's Convention rights had been infringed by the leading by the Crown at the trial of certain testimony - the content of several recorded interviews of the appellant by the police in the course of their enquiries in December 1994).

The background
[4] The appellant was born on 28 August 1978. He was accordingly 15 years of age at the time of the murder and 16 when the now contested interviews took place. The appellant's father had served in the Army and it had long been the appellant's ambition to follow him in that career. He ultimately did so and served with distinction, attaining the rank of Sergeant. He married and has two children. At the time of his trial he was 29 years of age.

[5] After leaving the Army the appellant's father, Edmund Ross, joined the police force. In 1994 he was serving as PC Ross at Kirkwall. He retained a keen interest in firearms, a number of which he kept at his home at St Ola, near Kirkwall. Also living there were his wife, the appellant and the appellant's brother and sister. The appellant also had a keen interest in firearms and in military matters. He was a member of the local Army Cadets. He regularly took part in shooting exercises with firearms, including pistols.

The police enquiries
[6] A highly significant item of evidence ingathered at the outset of the police enquiries was a spent cartridge case recovered from the floor of the restaurant. PC Ross, being experienced in firearms, was shown this cartridge case which he identified as that for a 9mm bullet manufactured in the Kirkee Arsenal in India. PC Ross was also given responsibility for carrying out test firings of all known handguns on the island. Additionally, he had limited other duties at the outset of the enquiries - preserving the crime scene and interviewing, on 3 June 1994, two witnesses. He was not otherwise a member of the police enquiry team, which was headed by Detective Superintendent Gough. Detective Inspector Chisholm was a senior member of that team. Both these officers had been brought in from Inverness for the purpose.

[7] On 12 August 1994 PC Ross approached DI Chisholm and informed him that he had found a box of 9mm Indian bullets among his own personal ammunition stock. The box was taken into police custody. It remained sealed and appeared to be a complete box of thirty five 9mm bullets. On examination of one of the bullets the casing was found to have identical markings with the casing recovered from the restaurant. Ross was reluctant to provide information to DI Chisholm about the provenance of the box of bullets but eventually named his supplier as James Spence, another ex-soldier, living in Kirkwall. Spence was interviewed when he stated that he had taken the box with him when demobbed in 1980 and had in about 1985/86 handed it over, with a box of .22 bullets, to Ross for destruction. He insisted that he had handed over to Ross only these two boxes. It subsequently emerged that that statement was false. In fact, Spence had also handed to Ross a further open and partly used box of 9mm Kirkee bullets. Ross had persuaded Spence to tell the police that he (Spence) had handed over to Ross only the sealed box of 9mm bullets. Ross was subsequently charged with, and later convicted of, attempting to pervert the course of justice. He was sentenced to a term of imprisonment. Police enquiries in early 1995 also disclosed that Ross had in about 1989/90 received at least one unlicensed handgun from a local arms dealer.

[8] A line of enquiry being pursued by the police from a relatively early stage was the sighting on the afternoon of 19 May 1994 of a male in Papdale Woods, Kirkwall, wearing a balaclava and otherwise dressed similarly to the killer in the restaurant. A schoolgirl, Lynn Railston, and a friend, had noticed this individual crouching behind a wall by the Woods as they walked home. When Lynn Railston reached home she mentioned this sighting to her mother, Margaret Railston. Both Miss and Mrs Railston watched the individual from their home for about twenty five minutes. Lynn Railston watched him through binoculars. They observed him also as, towards the end of his activities there, he removed some of his clothing, including the balaclava and a distinctively patterned white coloured T-shirt. He had with him a rucksack or similar item. He ultimately left the scene in a purposeful manner. Lynn Railston subsequently prepared an E-FIT of this male and a sketch of the T-shirt. The description revealed a striking similarity to the killer as described by the witnesses in the restaurant.

[9] On 8 September 1994 Lynn Railston advised the police that she had just seen again the male she had sighted in Papdale Woods. He had walked into the shop where she was working. Later that day she pointed out in the street an individual as resembling the person she had seen in Papdale Woods. Her mother, who was also present, confirmed to the police that identification. That individual was subsequently identified as the appellant.

[10] Later PC Ross told DI Chisholm that the appellant had a T-shirt of the distinctive pattern of that worn by the male in Papdale Woods. On 24 September 1994 DI Chisholm asked PC Ross to go home and bring the appellant and the T-shirt to the police station. They arrived there at about 10.55am when the appellant was interviewed, in the presence of his father, by DI Chisholm and Detective Sergeant Mackenzie. He was not cautioned. His responses were recorded in a Witness Statement. He was asked initially about his movements on 19 May. He denied being in Papdale Woods on that day. He admitted to having a black balaclava, with separate eye holes and mouth hole. He said that, sometime after the murder, he had taken it to school to show to a friend, Alan Robertson, but in the event that friend had not been at school that day. His mother had subsequently discovered the balaclava in his schoolbag and his father, on being told about this, had given him a row. Shortly thereafter the appellant had thrown the balaclava into the sea. He was also asked about his movements on the day of the murder. He said that about 6.30pm he had left home and cycled into Kirkwall, where he had cycled about in the Papdale East housing scheme; at about 7.00pm or shortly thereafter he had met two schoolmates, Ingrid Watson and Hayden Hourston, and spoken to them for about five minutes; he had then cycled home; he was nowhere near the restaurant at any point; as he was cycling home he had heard the sound of emergency vehicle sirens; he had arrived home at about 8.00pm. At the conclusion of this interview the appellant left the police station.

[11] The police enquiries continued. Hayden Hourston, Alan Robertson and Ingrid Watson were each interviewed. None of them appeared to support the appellant's account. On 2 December 1994 DI Chisholm decided that the appellant should be re-interviewed. PC Ross brought him into the police station early that afternoon. On this occasion DI Chisholm decided to interview the appellant outwith his father's presence. PC Ross took no objection to that course of action. The appellant was interviewed initially about the Papdale Woods incident. DI Chisholm and DS Mackenzie were present. The appellant was not cautioned. The interview was not recorded. After discrepancies with his earlier statement had been pointed out to him, the appellant accepted that he had been the person in Papdale Woods on 19 May.

[12] As soon as he made that admission, the interview was terminated. A voluntary attendance form was then completed, containing the statement that, unless the interviewee was detained under section 2 of the Criminal Justice (Scotland) Act 1980 or was arrested, he was free to go whenever he wished. The appellant signed that form. It was countersigned by both officers. The subject-matter of the interview was stated to be "Breach of the Peace".

[13] At 2.04pm the next interview ("the first recorded interview") began. It was tape recorded and the officers took manuscript notes. The appellant's father was present throughout. The appellant was informed that he was about to be questioned about the incident in Papdale Woods on 19 May. He was cautioned. He was asked what he was doing that day. He immediately responded that he was in the Woods that day. His explanation was that he was lying in wait for another youth, Jamie Weatherill, who, he had been told, had been physically abusing an ex-girlfriend of the appellant. He was "going to give him a fright to ... stop him from hurting her again". Jamie Weatherill had in the event not come that way that day. The appellant admitted to wearing a balaclava (black with three holes) and a white top with blue and red stripes and a blue tracksuit top with a hood. He had disposed of the balaclava by putting a stone in it and throwing it into the water at Scapa. He repeated his earlier account about taking it to school to show to Alan Robertson, that Robertson had not been at school, that the appellant's mother had found it in his bag and that his father had given him a row; that had been after the murder. He described other balaclavas which he had had but had disposed of. He described his movements in Papdale Woods. He stated that he had not worn the balaclava or the hood since that day. The interview ended at 2.47pm.

[14] DI Chisholm, in the presence of DS Mackenzie and the appellant's father, had a further recorded interview ("the second recorded interview") with the appellant shortly thereafter, again under caution, in which DI Chisholm read back in narrative form the account which the appellant had given in his answers in the first recorded interview. The appellant took no objection to that narrative. He signed the pages on which it had been written. This procedure concluded at 3.01pm.

[15] At 3.37pm a further recorded interview ("the third recorded interview") began. Immediately prior to it the appellant had signed another voluntary attendance form containing the statement that, unless he was detained or arrested, he was free to go whenever he wished. The form stated that he was to be interviewed in connection with the offence of "Murder". His father was in attendance throughout the interview, which was again conducted by DI Chisholm and DS Mackenzie. The appellant was not cautioned. He was questioned about his movements on 2 June. He repeated the account given by him on 24 September that he had left home about 6.30pm, cycled into town and cycled about the Papdale East estate. He repeated the route he had taken there and back arriving home sometime about 8.00pm. He repeated that when out he had met Hayden Hourston and Ingrid Watson. He gave some detail of the conversation he had had with them (involving the appellant having punched another youth after a session at the Army Cadets). He had spoken to them for about three minutes. He mentioned two other people, one of them being Hayden Hourston's brother, who were there at the same time. He had left them about 7.10pm. He had been nowhere near the restaurant. At the time of the murder (about 7.15pm) he had definitely been in the Papdale East area. He was asked again about the balaclava and, in effect, repeated the account he had given on 24 September. He gave further details of where he had been on the morning and early afternoon of the day of the murder. He described the clothing he said he had been wearing when he was out on his cycle ride. He had had a rucksack with him, with a jacket in it. The route he had taken was gone over with a map, PC Ross on occasion intervening with geographical information.

[16] The tape ran out at 4.20pm. The interview was resumed at 4.33pm, the same persons being present. No caution was given. It continued until 4.58pm. In the course of it the appellant gave further detail of the conversation he had had with Ingrid Watson and Hayden Hourston. He confirmed that he had been in the vicinity of Bignold Park, close to the East Papdale estate, when he had heard the sirens. He repeated his account about taking the balaclava to school and its consequences and about his disposal of both balaclavas. Before the interview ended DI Chisholm read back to the appellant his account in narrative form as given by him. The appellant confirmed that he did not want to change any part of it. He signed the written record of the narrative. He and his father then left.

[17] The police made further enquiries, including re-interviewing Hayden Hourston and Ingrid Watson, both of whom insisted that they had not seen the appellant on the evening of the murder. On 5 December James Spence was re-interviewed by DI Chisholm and DS Mackenzie. In the course of that interview Spence stated that he had in fact given three boxes of bullets to PC Ross, one of which was an open box of 9mm bullets, with 10-12 bullets remaining in it. These were of the same make as the bullets in the sealed box. He also gave an account of PC Ross having approached him some weeks after the murder and having urged him, if interviewed by the police, to give a false account of the bullets he (Spence) had handed over to Ross.

[18] The following afternoon while at school the appellant was detained, under section 2 of the 1980 Act, in connection with the murder. On being detained he made no comment. He was taken to the police station. The requisite form was completed, the circumstances giving rise to the suspicion being recorded as "Believed to have lied about movements on 2 June 1994. Believed to have access to firearms and ammunition." In a statement subsequently compiled by DI Chisholm it was observed - though neither counsel at the hearing of the appeal referred to or relied on this observation - that the appellant, before being interviewed, "declined the services of a solicitor". He was then interviewed under caution in relation to the murder. This interview ("the fourth recorded interview") was again tape recorded. His father was not present. The appellant insisted that on 2 June he had been at Papdale East and had spoken there to Hayden Hourston and Ingrid Watson. He had gone there for a bit of exercise. He gave an account broadly in line with his earlier accounts - other than that he accepted, as he had earlier, that he had been in Papdale Woods on 19 May. He was unable to explain why Hayden Hourston and Ingrid Watson were unable to support his account of being in the Papdale East estate on the evening of the murder; but suggested that Hayden's brother might have seen and remembered him. At the conclusion of the interview, which lasted about 42 minutes, the appellant was released from detention and taken home.

[19] No solicitor was in fact present at any of the interviews referred to above nor - with the possible exception of the observation by DI Chisholm mentioned in the preceding paragraph - was the appellant at any stage of these enquiries offered access to a solicitor.

[20] In March 1995 a former girlfriend of the appellant gave a statement to the police in which she described how, when she was out with him one evening between May and June 1993, he had apparently had one of his father's pistols in his possession. She did not, however, see the pistol and he kept it concealed to prevent it, he said, getting dirty.

[21] In due course the police prepared and submitted to the procurator fiscal a report on their enquiries into the murder. No prosecution at that time was instituted against the appellant or any other person with respect to the murder.

The trial
[22] Following the service on the appellant of an indictment for murder (with other charges) towards the end of 2007, at a preliminary hearing on 14 March 2008 his counsel (Mr Findlay Q.C.) gave notice that a special defence of alibi would be lodged on his behalf. Such a special defence was lodged at a subsequent procedural hearing on 21 May. It narrated that, without prejudice to the appellant's plea of not guilty, at the time when the murder is believed to have been committed he "was not in the area of Bridge Street or the town centre of Kirkwall, Orkney but was cycling in the area of Bignold Park, Orkney".

[23] The trial commenced on 12 May 2008. In the course of the Crown case the Witness Statement made by the appellant on 24 September 1994 and transcripts of each of the four recorded interviews were put in evidence. No objection was taken by counsel for the appellant to the leading of any of that evidence. On 5 and 6 June 2008 evidence was led from DI Chisholm (by then retired). He was not asked about the unrecorded interview on 2 December 1994 nor was any line of evidence pursued with him as to whether and, if so, at what stage the appellant was regarded as a suspect for the murder or for any other crime. On 13 June 2008 the Advocate depute withdrew certain charges from the libel and closed the Crown case. The appellant was not called to give evidence. Certain witnesses were led for the defence. On 16 June Erica Robb, forensic psychologist, was called as a witness. No report by her had been lodged as a defence production but there had been some discussion between the Advocate depute and counsel for the appellant as to the nature of the testimony which it was intended she would give. The Advocate depute objected to that testimony being given. Having heard parties, the trial judge adjourned to consider the matter. On his return he sustained the Crown's objection. That decision is the subject-matter of Ground of Appeal 9, which will be discussed later. A number of further witnesses were led for the appellant and the defence case then declared closed. On 17 June the Advocate depute addressed the jury, followed by counsel for the appellant. The latter's speech continued into the following day. The trial judge began his charge that afternoon, completing it the following morning. Thereafter the jury retired. The court adjourned early that afternoon due to oppressive heat in the jury room and resumed the following day (20 June), when the jury returned majority verdicts of guilty on each of the charges (murder and attempting to defeat the ends of justice) which remained before them.

The additional ground of appeal
[24] The additional ground of appeal is directed to an alleged infringement of the appellant's rights under Article 6(3)(c), as read with Article 6(1), of the European Convention on Human Rights. Article 6(3)(c) provides that everyone charged with a criminal offence has, among other minimum rights, the right "to defend himself in person or through legal assistance of his own choosing". The Strasbourg Court has emphasised the importance of the investigation stage for the preparation of the trial, in so far as the evidence obtained during that stage determines the framework in which the offence charged will be examined at the trial (Salduz v Turkey (2009) 49 EHRR 19, at para 54). The court in Salduz went on to find that "in order for the right to a fair trial to remain sufficiently 'concrete and real' ... Article 6(1) requires that, as a rule, access to a lawyer should be granted from the time of first interrogation of a suspect by the police ...". In Salduz the applicant, who was 17 years of age at the time, had, prior to the interrogation in question, been taken into custody by police officers on suspicion of having participated in an unlawful demonstration. He was at that stage clearly a "suspect" for the purposes of Convention law. In Cadder v HM Advocate 2010 SCCR 951, where the appellant had prior to questioning been detained by the police under section 14 of the Criminal Procedure (Scotland) Act 1995 (which empowers a constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment), the Supreme Court held, applying Salduz, that his Convention rights had been infringed by his not having, prior to being questioned by the police, access to legal advice; again, the appellant was clearly a "suspect" at the relevant time. In Ambrose v Harris 2011 SCCR 651 the Supreme Court had to consider the position of individuals who were not in police custody or its equivalent. At para 62 Lord Hope said:

"The correct starting point, when one is considering whether the person's Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6(1). The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium, paragraph 46; Eckle v Germany, paragraph 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine, paragraph 57. In Corigiliano v Italy, paragraph 34 the court said that, whilst 'charge' for the purposes of article 6(1) might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed a criminal offence, as it was put in Eckle, paragraph 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In Subinski v Slovenia, paragraph 62-63, the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words 'official notification' should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected."

[25] In oral argument Miss Scott for the appellant acknowledged that, at the stage when the appellant on 24 September 1994 attended the police station with his father and gave a "voluntary" statement, he was not a "suspect" for the purposes of Convention law; his human rights, with respect to questioning, had not at that stage been engaged; although he did not have access to legal advice, there was no infringement of Article 6 by the prosecutor at his trial leading evidence of the statement he had then made. That concession was clearly right.

[26] The first infringement, she argued, occurred when the prosecutor led evidence of the appellant's responses at the first recorded interview. An initial problem with this argument is that there is no direct material before this court as to whether at that time the appellant was regarded as a suspect - or, if so, as a suspect for what. As noted above, no objection was taken to the prosecutor putting the contents of this interview in evidence; nor was DI Chisholm questioned about the appellant's status at this or at any other time. Miss Scott submitted that whether an individual was a "suspect" for the purposes of the Convention depended on the objective facts, not on the perception of the police at the time. But, even if an individual can be a "suspect" at a stage when he is not in fact suspected by the police, the attitude of the police at that time is clearly relevant. Unless the matter has been explored in evidence at the trial, the appeal court is significantly disadvantaged by not having a full examination at trial of all the relevant circumstances.

[27] It is true that the appellant was cautioned at the outset of this interview; but the mere fact that an individual has been cautioned does not carry the implication that his Article 6 rights have been engaged (Ambrose, per Lord Hope, at para 63). It is also true that he was being questioned at a police station (and that the interview was recorded), rather than by the roadside or in his home. But he was not there under any compulsion. He was there on a voluntary basis with his father in attendance. He was free, and had been informed that he was free, to leave at any time. At the end of this interview he was neither detained nor arrested. In any event, even if he was then a suspect, there is no basis in the material available to us, to conclude that he was at that stage suspected of the murder. He was not at that interview questioned about his movements on 2 June and, when that interview and a short recapitulation terminated and a further interview (this time about the murder), the third recorded interview, began, he was not cautioned before questioning - a clear prima facie indication that the police at that stage did not regard him as a suspect for the murder. Although the Papdale Woods incident was a line of enquiry which was being pursued in relation to the murder, it is not known (as it was not explored at trial) what other enquiries were being pursued by the police at that time and accordingly what suspicion, if any, had at that stage focused on the appellant in respect of that crime.

[28] In Ambrose the Supreme Court recognised that Article 6 rights might be engaged where the individual was in police custody or its equivalent. Lord Hope concluded that in the case of G (the third reference) - who was a suspect and whose freedom of action had been significantly curtailed by detention and handcuffing - the circumstances were sufficiently coercive for the incriminating answers that he gave to the queries put to him without access to legal advice to be inadmissible (para 71). In the case of the other two references, where the circumstances were not so coercive, it was held that it would be to go further than Strasbourg had gone to hold that the appellant was entitled to a finding that the evidence in question was inadmissible (see paras 68 and 70). In relation to the "so far and no further" doctrine (R (Ullah) v Special Adjudicator [2004] 2 AC 323 and subsequent cases), Miss Scott referred us to very recent observations by Lord Brown in Rabone v Pennine Care [2012] UKSC 2 at para 112. It may be that the "Ullah doctrine" is ripe for reconsideration or reformulation but, given its repeated application in the Supreme Court, it is not for this court to attempt any such reconsideration or reformulation.

[29] An additional feature here is that at the material time the appellant was a "minor" or "child" for the purposes of the international instruments referred to at paras 32-36 of Salduz - although, being 16, not a child for the purposes of the Criminal Procedure (Scotland) Act 1995 (section 307(1), as read with section 93(2)(b) of the Children (Scotland) Act 1995). But, while it is no doubt right that special attention be given to the protection of children, as to the protection of vulnerable adults (see Plonka v Poland (31 March 2009, App. No. 20310/02) Strasbourg has not laid down that, as a general rule, access to legal advice must be afforded to all children when being questioned by the police in all circumstances (such as in their own homes) about possible offences; nor that such access must be afforded to all children while being questioned by the police in a police station in the presence of a parent. Whether the appellant's rights under Article 6(1) and 6(3)(c) were infringed by reason of the absence of access to legal advice prior to or during the first recorded interview must, in our view, turn on whether, in the particular circumstances, it was fair that his responses in that interview were put in evidence at his trial by the Crown. In our view, testing the matter as best we can on the limited material available, we are not persuaded that it was unfair. The underlying concern is that vulnerable persons (including children) may be at greater risk than fully able adults of incriminating themselves to their ultimate disadvantage at trial. While, on one view, that risk is always best guarded against by access to legal advice, it is clear that such access is not required under Convention law in all circumstances. The appellant was not a young child (cf JDB v North Carolina 524 US No.09-11121 (2011), where a 13 year old was questioned by police outwith the presence of a parent or guardian). In Panovits v Cyprus [2008] ECHR 1688, where the accused was 17 years of age and was questioned in the presence of his father, the circumstances were plainly coercive: in the course of the interview an officer entered the room holding an arrest warrant and informed the applicant that he was under arrest for murder; later a number of officers in another room asked him questions and induced him to confess, promising that if he did so they would assist him; that questioning went on for 30-40 minutes; at some stage a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do; the police officers told him that if he wanted to go he should confess - a clear indication that, despite his having gone to the police station on invitation, he was not free to go unless he confessed to the murder.

[30] The circumstances of the first recorded interview could hardly have been more different. The appellant was, as he knew, free to go at any time. He was not pressed to confess to any crime: the interview opened with the appellant volunteering, in answer to an open invitation, that he had been at Papdale Woods on 19 May. The questioning was directed to exploring why he had been there and how he had acted when there. He was also asked what he was wearing that day and why he had thrown away the balaclava. He was further asked whether he had at any time since then worn the balaclava and the hood - which he denied - and about the account he had given on 24 September about taking the balaclava to school. Much of this was a reiteration of what he had said in his voluntary statement on that day. The questioning was not hostile nor in the nature of cross-examination. Although the interest of the police may not have been restricted to the incident at Papdale Woods itself but have extended to any connection between the general appearance of the individual there and the appearance of the killer in the restaurant, there is nothing to suggest that the police had yet sufficiently focused on any similarity such as to render the appellant a suspect for the murder. The fact that they did not at the outset of the third recorded interview (which was specifically directed to the murder) caution the appellant tends to suggest that they had not.

[31] Throughout the first recorded interview the appellant was accompanied by his father, a serving police officer. Miss Scott submitted that PC Ross could not be regarded as a "responsible adult" providing any form of protection to the appellant at interview because he was himself involved in the police enquiries and because "he had an interest in appearing to co-operate with the police, albeit falsely". But by 2 December 1994 PC Ross was, so far as appears, in no way involved in the police enquiries into either the Papdale Woods incident or the murder. And his position was not such as disabled him from supporting his son and protecting him from any untoward police conduct, including inappropriate questioning. PC Ross had decided to give a false account to his superiors of the ammunition held in his house, and so accessible to the appellant, in what subsequently can be seen to have been a misguided attempt to avoid evidence incriminatory of the appellant becoming known to the investigating officers. In flagrant breach of his obligations as a policeman, he took deliberate steps to protect his son. It was consistent with that attitude that he would seek to protect him while he was being questioned. PC Ross's experience as a police officer probably served to make him a more effective "responsible person" than most parents.

[32] In these whole circumstances we are not persuaded that the carrying out of the first recorded interview without the appellant having first been given access to legal advice rendered unfair the leading by the prosecutor at trial of the content of that interview (or of its recapitulation in the second recorded interview).

[33] The third recorded interview commenced shortly thereafter. Again the appellant signed a form which expressly told him that, unless detained or arrested, he was free to go at any time. He was not cautioned. In the absence of material to suggest that this was some device by the police or that they deliberately shut their eyes to the appellant being at that stage obviously a suspect for the murder, the natural inference is that their enquiries had not reached the stage where suspicion had centred on him. That stage was reached only when, following the disclosure by Spence on 5 December, the police had reason to believe that the appellant had access to 9mm bullets. Suspicion having then focused on the appellant for the murder, the police were then in a position to detain him - as they did on 6 December. During the third recorded interview the appellant again had his father in attendance.

[34] In our view, on the material available to this court, Article 6 was not engaged in relation to the third recorded interview and there was no breach of the appellant's rights under that article by the prosecutor leading at his trial evidence of the content of that interview.

[35] During none of these interviews was the appellant "in custody" or otherwise had his freedom of action significantly curtailed.

[36] By the time of the fourth recorded interview the appellant had become a suspect, was detained and was being questioned in a police office. The Advocate depute conceded that in light of Salduz and Cadder - although both these decisions post-dated the trial - the appellant's Convention rights were infringed by the prosecutor's leading of the content of that interview at the trial. The question which then arises is the consequence of that for the conviction.

[37] Before any discussion of that, it is appropriate to reflect on how the appellant's defence was conducted at trial. He was represented there by a highly experienced and competent Queen's Counsel. There is no suggestion in this appeal of defective representation. In anticipation of the trial a special defence of alibi was lodged - on the appellant's instructions, it may be assumed. That alibi was broadly consistent with the account of his movements which the appellant had given in his voluntary statement on 24 September. The same account, with some elaboration, was given in the third and fourth recorded interviews. If all this material were to be before the jury, it would be open to counsel to suggest that the appellant had been essentially consistent in the account of his movements - and that notwithstanding that the appellant's account of having met Hayden Hourston and Ingrid Watson (who had since died) on his cycle ride was liable to be contradicted by their testimony (in the latter's case in the form of a statement under section 259 of the 1995 Act). That suggestion could be made without leading the appellant in evidence and exposing him to cross-examination. That this was a deliberate strategy adopted by the defence is, in our view, confirmed by the fact that no objection to the leading of evidence of the interviews was taken by counsel. Ignoring for present purposes any challenge on Convention grounds - Salduz had not been decided, albeit the court there purported to be following earlier authority - a challenge at common law to the admissibility of at least the third recorded interview would appear to be an obviously available strategy - at least if by cross-examination of DI Chisholm counsel could demonstrate that, when that interview began, the appellant was truly a suspect for the murder. There was certainly material available to counsel - in the form of DI Chisholm's statement - that amongst many other lines of enquiry the police may have made a connection between the appearance of the male in Papdale Woods on 19 May and that of the killer. To question with respect to murder a suspect - particularly a young person - without first cautioning him was a situation ripe for challenge on the much stronger ground of common law unfairness. The same was probably true of the first recorded interview. It had, as disclosed by DI Chisholm's statement, been preceded by an unrecorded interview of the appellant, in the absence of his father, by two police officers without the appellant being cautioned. That interview had resulted in the appellant admitting that it was he who had been at Papdale Woods on 19 May. No explanation appeared in DI Chisholm's statement for his prima facie extraordinary decision to take the appellant aside and question him in this way. The whole of the succeeding interview (the first recorded interview) proceeded on the foundation of that admission. The fruit of the poisoned tree might readily have been objected to. However, it may equally be that counsel was satisfied on the material which he had, and as this court has also concluded, that the appellant could not be classified as a suspect such that he required to be cautioned prior to interview.

[38] Miss Scott submitted that it was irrelevant what rights of objection to the leading of evidence might have been available to the defence; while a Convention right might be waived, there was no question here of the appellant having waived his rights under Article 6(3)(c) to have access to legal assistance. But the ultimate question is whether in all the circumstances the appellant had a fair trial. The guarantees contained in Article 6(3) are constituent elements, among others, of the concept of a fair trial set forth in Article 6(1) (Baragiola v Switzerland (1993) App. No. 17265/90, cited in Reed & Murdoch - A Guide to Human Rights in Scotland, para 5.108). If it is evident - as in our view it is - that the defence adopted a deliberate line that the appellant's extrajudicial accounts at each stage of the investigation should be before the jury, then in the absence of any suggestion - and there is none - of defective representation in that regard, the laying of these accounts before the jury by the prosecutor did not result in the trial being unfair.

[39] Even if the foregoing analysis is unsound, the appellant requires to demonstrate that an ultra vires act or acts by the prosecutor otherwise rendered the appellant's trial unfair and that there was thus a miscarriage of justice. In this connection Miss Scott cited McInnes v HM Advocate 2010 SCCR 286 for the relevant test. At para 24 Lord Hope said:

"The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention rights, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which they directed their verdict if the withheld material had been disclosed to the defence."

McInnes was a non-disclosure case, as was Fraser v HM Advocate 2011 SCCR 396, where the McInnes test was adopted and applied (see, in particular, Lord Hope at para 14).

[40] It is not clear on authority whether the McInnes test should be applied to a case like the present - where the issue is not concerned with evidence which was not before the jury but rather with the evidence which was before them but which, on the relative hypothesis, ought not to have been.

[41] However, if the McInnes test is to be applied, then it is necessary to concentrate on the case as presented at the trial rather than on the case as it might have been presented (Fraser, per Lord Hope at para 38). On that hypothesis the Crown would not have sought to lead any evidence about the contents of any of the recorded interviews (or any attempts to do so would have failed on objection being taken by the defence). The jury would have had before it the appellant's witness statement of 24 September (in which he denied being at Papdale Woods) but there would have been direct evidence (from Lynn and Margaret Railston) that he had been there. Given that the appellant had subsequently admitted that he had and, on the assumption (consistent with how the case was in fact conducted) that his instructions were that that admission was true, counsel would have been unable to suggest to either of these witnesses that their evidence was unreliable or untruthful. The appellant would also have lost the advantage that he would otherwise have had of demonstrating, without the need to go into the witness box, that he had given, subject to one exception, a broadly consistent account of events throughout.

[42] It is true that the Advocate depute in his speech to the jury referred to the recorded interviews and suggested that certain features of the accounts given in them did not stand up to careful scrutiny. In this connection Miss Scott referred us to the observations of the Grand Chamber in Saunders v United Kingdom [1997] 23 EHRR 313 at para 71 where, in a case where suspected persons had been forced to answer questions under legal compulsion, it was said:

"Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt about other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial."

It may be doubted whether the appellant's recorded interviews were deployed "in support of the prosecution case" (as distinct from being analysed for their inherent credibility); but we are prepared to proceed on the basis that an effective attack on the credibility of what the appellant said at these interviews might damage the defence and thus support the prosecution case. There may or may not have been substance in the Advocate depute's suggestions that there were incredible features in some aspects of the accounts given by the appellant; defence counsel in his speech robustly responded to these criticisms. But, whatever the validity of the criticisms, the accounts were, with the exception of the admission about being at Papdale Woods, broadly consistent with the witness statement of 24 September.

[43] In his closing address the Advocate depute described the Crown's case as "compelling, unanswerable". This description has force even on the hypothesis that none of the recorded interviews had been before the jury. There was clear, uncontradicted and uncontestable evidence that the male in Papdale Woods on 19 May 1994 was the appellant; there was evidence of a striking similarity between the clothing and equipment worn and carried by that male and by the killer in the restaurant, as well as each having a purposeful gait; most compelling of all was the evidence of the appellant's ready access to guns and ammunition, including ammunition of identical calibre and manufacture to the bullet used to kill the victim; although proof of motive was unnecessary, there was ample evidence that the appellant was at the time of the murder hostile to persons of a different ethnic origin. For what it is worth, which may not have been very much, William Grant gave evidence of seeing the appellant in the vicinity of the murder locus shortly after its occurrence. Taking all the circumstances of the trial into account there was no real possibility that, had the recorded interviews been withheld from the jury, they would have arrived at a different verdict.

[44] In these circumstances the additional ground of appeal must be rejected.

Ground of appeal 9
[45] As earlier narrated, in the course of the defence case Erica Robb, consultant psychologist, was called to give evidence. No report from her had been lodged, or was tendered, although there had, it seems, been some discussion between counsel as to the evidence she was expected to give. The Advocate depute objected to the leading of such evidence. There was discussion in the absence of the jury. No application was made to hear her evidence or any part of it in the absence of the jury before a ruling was made. The trial judge ultimately sustained the Crown's objection. By this ground of appeal the appellant contends that the trial judge erred in his decision and that a miscarriage of justice thereby occurred.

[46] In the course of its case the Crown had led evidence that the appellant had made remarks which could be interpreted as racist and sexist. He had also kept a notebook containing drawings which indicated that he had Nazi sympathies. Counsel for the appellant, in resisting the Advocate depute's objection to the leading of Miss Robb's evidence, described this line of Crown evidence as a broad-based attack on the character of the appellant. The Advocate depute had also elicited evidence about the appellant's army career, including his appointment to command a sniper platoon. The implication, the defence suggested, was that the appellant was a killer now and had been a killer in 1994. It was against that background that it was proposed to lead evidence from Miss Robb - essentially to respond to the attack on character and to demonstrate that, as an expert psychologist, she had found, on interviewing the appellant and having sight of his school and army records, no evidence of psychopathy or of a personality defect. Counsel accepted that there had been no previous case in Scotland of evidence being admitted of a psychological profile of an accused. However the court, it was argued, always recognised the need to give an accused every opportunity "to fight his corner".

[47] In sustaining the objection the trial judge relied on the circumstance that Miss Robb's views would necessarily have been influenced by the accounts given by the appellant at her interviews with him, and that no evidential basis had been laid, in the form of evidence from the accused, as to the truth and accuracy of such accounts. He also observed that any conclusion that the appellant was not a psychopath would be irrelevant unless the jury could conclude that the murder could only have been committed by a psychopath; there was no basis in the evidence for any such conclusion.

[48] In presenting argument on this ground of appeal Miss Scott tendered a copy of the expert report which had been prepared by Miss Robb in advance of the trial and a (recent) precognition taken from her. There was no suggestion that evidence should be led from Miss Robb in the course of the appeal. In advancing her contention Miss Scott accepted that evidence seeking to establish a psychological profile of the appellant (that he was not capable of committing the murder) was inadmissible. However, what the Crown had done in this prosecution had been to attack the character of the appellant. Lay witnesses had been led in rebuttal of that evidence - albeit they essentially spoke to his character as demonstrated in recent years; Miss Robb's expert evidence was admissible also in rebuttal of the Crown's attack on the appellant's character - by demonstrating that, in an expert psychologist's judgment, the appellant exhibited no indications of a predisposition to violence or to antisocial behaviour.

[49] The trial judge was, in our view, put at a significant disadvantage by Miss Robb's report not having been placed before him. That would have allowed him to identify with exactness what her evidence might be and the basis upon which any professional opinion expressed by her would be founded. As a matter of good practice, where it is proposed to lead and rely upon expert testimony a report from such an expert should, unless possibly in exceptional circumstances, be prepared and lodged. We have now had the benefit of seeing Miss Robb's report.

[50] One of the striking features of it is that her instructions from the defence solicitors were "to carry out a full psychological assessment on Mr Ross to attempt to identify whether he evidences any risk factors which might predispose him to committing murder". In her first paragraph Miss Robb observes:

"Since several of the factors used in estimating risk are historical, i.e. they relate to past behaviour, risk assessment of first offenders is particularly suspect because of the limited official historical information about them and the absence of any previous pattern of offending behaviour. Mr Ross has no history of criminal convictions but there is a wealth of objective collateral information about him provided by his school and Army records."

In a paragraph headed "Risk Factors" she reports:

"Structured clinical judgement based around reliable risk assessment tools is, to date, accepted as the most effective method of assessing and managing risk. In predicting future physical violence I have used the Historical Clinical Risk-20 known as the HCR-20 (Webster et al 1997) which is rated highly in RATED [the Risk Management Authority Risk Evaluation Tools Evaluation Directory, Version 1, April 2006]. The HCR-20 (Historical, Clinical and Risk Factors) is risk management checklist which seeks to focus on the risk factors present at the time of the index offence and to suggest methods for the management of these to prevent re-offending. The HCR-20 provides professional guidelines for assessing risk of future violent re-offending and is widely recognised within the field as a useful technique for assessing 20 factors which are extensively regarded as significant as predicting violence recidivism. Although it is an attempt to systematise the assessment of individuals, it is not sufficiently structured or standardised to be a numerically scored test and does not yield norm-referenced or criterion-referenced scores. The assessment is in fact designed as a risk management tool in that it is geared towards suggesting ways of managing the potential risk, rather than providing straightforward statistical odds for re-offending. In this case Mr Ross has no history of offending and this assessment is being utilised to evaluate whether Mr Ross has any predisposition towards criminal physical violence which might account for his identification as a suspect for a murder."

She then sets out a "profile" based on the HCR-20 technique, which includes a section dealing with psychopathy, and gives her opinion as follows:

"Application of a risk management tool which is designed to protect future violence in those already convicted of a violent act is not entirely appropriate with someone who has no previous convictions of violence at all. However, utilising such a technique serves to demonstrate that Michael Ross shows none of the factors which are recognised as predisposing towards unlawful physical violence against others. At the time of the murder Mr Ross was an immature 15 year-old who had no apparent personal link to the victim. Witnesses describe the murderer as 'deliberate', 'unemotional', 'experienced', 'like a professional', and there is evidence from their accounts that this was not a random act of racial aggravation but an organised and targeted act of violence against a specific person. A 15 year old boy is unlikely to fit the witnesses' description unless he is exceptionally psychopathic and has experience of executing human beings. Unless Mr Ross is an adept actor and considerably more able intellectually than his background history suggests, there is no evidence from the material I have been provided with, and my interview with him, to suggest that he fits this profile."

[51] It is accordingly plain that what Miss Robb had attempted was indeed the formulation of a psychological profile and that the tool which she had used for that profile was HCR-20, a tool devised and used for the purpose of assessing and managing the risk of future violence by a person who had already committed an act (usually a serious act) of violence. She acknowledges that this tool is "not entirely appropriate" with someone who has no previous conviction for violence at all. She does not suggest that this tool has ever previously been used, by her or by others, to assess whether an individual without such a history has any predisposition to commit murder, or indeed any other offence of violence; no body of scientific or medical material supporting the use of this tool for this purpose is referred to.

[52] Moreover, there is no legal authority in support of adducing in a criminal trial evidence of a psychological profile of an accused for the purpose of assessing whether that accused was or was not psychologically prone to commit an offence. In R v Gilfoyle [2001] 2 Cr. App. R. 5 the (English) Court of Appeal held as inadmissible on a number of grounds proposed expert testimony that a deceased was psychologically disposed to commit suicide. At para 25 Rose LJ enumerated the reasons for that decision, including:

"Sixthly, [counsel for the appellant] accepted that, if evidence of this kind were admissible in relation to the deceased, there could be no difference in principle in relation to evidence psychologically profiling a defendant. In our judgment, the roads of enquiry thus opened up would be unending and of little or no help to a jury."

The fifth reason had set out authorities in various other jurisdictions which had ruled that testimony of the kind in question was inadmissible. The absence of any example in the Scottish Courts where such evidence has been admitted points to the same rule being applicable in this jurisdiction.

[53] For these reasons it is plain, in our view, that Miss Robb's testimony was inadmissible and that the trial judge was correct to sustain the Crown's objection to it. It was not truly evidence of a kind which may, in some circumstances, be admissible as evidence as to good character. The latter comes from individuals who, from long personal acquaintanceship, know the individual in question well and can speak to his or her regular words and actions. Character in that sense is essentially a matter upon which the jury can make an assessment on the basis of lay evidence. They need no expert assistance to make a valid judgment. In any event, there is a distinction between evidence as to character and evidence as to motive. The evidence led by the Crown was essentially of the latter nature.

[54] In our judgment ground of appeal 9 also falls to be rejected.

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