Appellant: Taylor, QC, McCaffrey; John Pryde & Co, Edinburgh

Respondent: Wade QC, Barron; Crown Agent

6 December 2012

Introduction

[1] The appellant was indicted to a preliminary hearing at the High Court at Glasgow on 16 November 2011. The indictment alleged a conspiracy between the appellant, Taimour Abdulwahab (the deceased) and other unspecified persons to further terrorist aims by criminal and other means, including the use of explosive devices in the commission of an act of terrorism directed against members of the public in Sweden, with intent to murder them. Sub-heads (a)-(u) narrated a number of things said to have been done in pursuance of the conspiracy. Some of these amounted to substantive offences while others did not. The substantive offences included allegations of obtaining banking facilities by fraud, obtaining certain benefits by fraud, obtaining leave to remain in the United Kingdom by means of deception, contrary to the Immigration Act 1971 section 24A(1)(a) and having possession of an immigration status document which was improperly obtained, contrary to the Identity Cards Act 2006 section 25(1)(b). The significant sub-head for the purposes of this appeal is sub-head (c) which libelled a contravention of section 17 of the Terrorism Act 2000 (the 2000 Act).

[2] On 28 July 2012 after a lengthy trial at the High Court at Glasgow the jury found the charge of conspiracy not proven but found the appellant guilty of a number of the sub-heads which were capable of standing alone as offences. These included sub-head (c) as amended in the following terms:

"Between 1 January 2005 and 16 December 2010 both dates inclusive, at Flat 2/2, 106 Dalmarnock Road, Flat 1/4, 150 Charles Street and Flat 19/6, 64 Curle Street, all Glasgow, 15 Argyll Avenue, Luton, England and elsewhere you did enter into or become concerned in an arrangement as a result of which money or other property was made available or was to be made available to another whilst knowing or having reasonable cause to suspect that it will or may be used for the purposes of terrorism, in that you did on various occasions transfer sums of money totalling £5,725 to an account in the name of said Taimour Abdul Wahab at the National Westminster Bank, 31 George Street, Luton, England, you did transfer the sum of £1,000 into an account in the name of Hemel Tellis, c/o Strathclyde Police, Glasgow at the Royal Bank of Scotland, Luton, England all in the knowledge or with reasonable cause to suspect that said sums of money would or may be used for the purposes of terrorism; contrary to the Terrorism Act 2000, section 17."

In due course the appellant was sentenced to seven years imprisonment in respect of the conviction on sub-head (c). Lesser sentences were imposed in respect of the other sub-heads of which the appellant was convicted.

[3] This appeal is against conviction and sentence on sub-head (c). No appeal is taken with respect to the remaining convictions and sentences. The appellant lodged a Note of Appeal in which there were four grounds directed against conviction together with an appeal against sentence. This Opinion deals with Grounds 1 and 4 only. The appeal on Grounds 2 and 3 will be heard separately.

[4] Although the first ground of appeal contained a number of elements, as it was developed in written and oral submissions it came to be directed at the sufficiency of evidence in relation to sub-head (c) as a stand-alone charge and the trial judge's directions in that respect. The fourth ground of appeal was directed at the manner in which the Crown and the trial judge dealt with the evidence of Omar Menni, the brother of the appellant, who was called to give evidence by the Crown.

The Terrorism Act 2000

[5] Section 17 of the 2000 Act provides:

"A person commits an offence if-

(a) he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and

(b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism."

Section 1 provides a definition of terrorism:

"(1) In this Act "terrorism" means the use or threat of action where-

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious racial or ideological cause.

(2) Action falls within this subsection if it-

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section-

(a) "action" includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."

[6] Senior counsel for the appellant, Mr Taylor QC, raised an introductory point in relation to the construction of section 17 of the 2000 Act. He submitted that the question of whether the Crown had proved that the appellant had reasonable cause to suspect that payment would be or may be used for the purposes of terrorism should be approached on a subjective basis rather than an objective one. There was a presumption in Scots law that mens rea was required before a person could be found guilty of an offence. That was rebuttable only by clear statutory language or by necessary implication. The proper construction of section 17 was that the provision of money was criminal only where the person who made the payment knew and intended that it was for the purposes of terrorism or where that person suspected that the money would or might be used for the purposes of terrorism. It would be wrong to approach the case by looking at the facts known to the individual and asking whether the reasonable person in these circumstances would have the necessary suspicion. Mr Taylor conceded that the mind of the accused person could not be solely determinative of his criminal responsibility and a line would require to be drawn at some point. In support of these propositions Mr Taylor referred to a number of English cases including Barnfather v Islington Education Authority 2003 1 WLR 2318; Gammon (Hong Kong) Limited v Attorney General of Hong Kong 1985 1 AC 1; B (A minor) v Director of Public Prosecutions 2000 2 AC 428. In B (A minor) at p 459 Lord Nicholls of Birkenhead quoted what he described as Lord Reid's magisterial statement in the leading case of Sweet v Parsley 1970 AC 132, 148-148:

"There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea... It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary."

In Gammon (Hong Kong) Limited Lord Scarman at p 14 set out five propositions:

"In their Lordships' Opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellant's counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

We were not greatly assisted by reference to these authorities. We note that in Gammon (Hong Kong) Limited the offence was a contravention of section 40 of the Buildings Ordinance which was held to be an offence of strict liability. In B (A minor) the offence was in the following terms:

"Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years ..."

It was held that mens rea was necessary because Parliament had not expressly or by necessary implication provided to the contrary.

[7] In our opinion the wording of section 17 of the 2000 Act makes it plain that Parliament intended that an objective test should be applied. The proper approach is to examine the evidence in relation to the appellant's actings and state of knowledge and ask whether a reasonable person in the position of the appellant would suspect that the payments would or might be used for the purposes of terrorism. We note that Mr Taylor did not criticise the directions of the trial judge at page 41 of his charge that they should take a subjective approach. In this respect the directions of the trial judge were favourable to the appellant.

The evidence
[8] In his report the trial judge sets out the evidence on which the Crown relied, much of which was agreed.

Evidence that the deceased was a terrorist

[9] The evidence clearly demonstrated that the deceased was a terrorist. In November 2010 he travelled to Sweden where he purchased an Audi motor car and various items and materials with which to make improvised explosive devices comprising pressure cookers filled with explosive powder to be detonated by the elements of broken Christmas lights attached to a battery. It appeared from the construction of the devices, which included ballbearings and other shrapnel, that the intention was to cause a considerable amount of damage.

[10] At about 1700 hours on 11 December 2010 the deceased was killed when one of the devices, which he was carrying, detonated in Bryggargatan, a side-street of Drottninggaten in Stockholm. Two similar unexploded devices were recovered: one was in a rucksack which was near the body of the deceased and the other in the Audi car which was parked a few blocks away and which had been set on fire. Although it was one of the busiest shopping days of the year and the area involved was a pedestrian precinct no-one else was killed or injured. The trial judge remarked that it appeared that the explosive device had been detonated prematurely.

[11] About 20 minutes before the explosion occurred the deceased sent an email message to a number of recipients including the Swedish authorities, the Swedish media, his wife, Mona Thwany, and his mother. In this email he justified his actions by reference to two particular issues. First, he referred to certain cartoons which had been published in the Swedish media. These cartoons, one of which depicted the prophet Mohammed as a dog, were considered offensive to Muslims. Secondly, he made reference to the deployment of Swedish troops in Afghanistan. The deceased asked for forgiveness from his wife and family, saying that it had not been very easy to live for the last four years with the secret of being "Mujahid" or "terrorist". He stated that journeys which he had made to the Middle East were not for business but for "Jihad". He called upon hidden Mujahideen in Europe, especially in Sweden, to strike, even if only with a knife.

Case against the appellant

[12] It was not disputed that the appellant was a friend of the deceased. In 2009 both had been living in Luton. It was a matter of agreement that the appellant paid the sums of money libelled in sub-head (c). The question was whether the Crown could prove that these payments were part of an arrangement as a result of which money or other property was made available or was to be made available to another while the appellant knew or had reasonable cause to suspect that the sums would or may be used for the purposes of terrorism. The case against the appellant was circumstantial.

The transfer of money

[13] In 2009 and 2010 at the Blythswood Square branch of the Nat West Bank in Glasgow the appellant made a series of deposits in cash into the Nat West bank account number 78667641 held in the name of the deceased: on 5 June 2009 he paid in the sum of £600; on 8 June 2009 the sum of £900; on 10 May 2010 the sum of £1,525; on 13 May 2010 the sum of £1,500; and on 3 June 2010 the sum of £1,200.

[14] It was also agreed that on 15 December 2010 the appellant deposited £1,000 in cash into a Royal Bank of Scotland account number 47002220 held in the name of Hemel Tellis. That money was given by Hemel Tellis to Mona Thwany, the widow of the deceased. According to the evidence of the women the appellant paid the money as a gift or means of support for Mona Thwany and her children. Mona Thwany said that she had repaid the money because she had no need of it.

[15] The Crown led evidence from Dr Matthew Levitt who was described as an expert in international terrorism, with a focus on Middle East terrorist groups and their logistical and financial support networks. At the trial his evidence was restricted to giving evidence of a general nature without making specific comment about the appellant. According to Dr Levitt those involved in terrorist activities pledged to take care of the families of activists who were killed, thus reassuring those who might lose their lives in the course of terrorist activity that their families would be taken care of.

[16] The payments into the account of the deceased were all made in cash by withdrawals from ATM machines. This was consistent with Dr Levitt's evidence that such measures were used to conceal the source of the funds by obscuring the audit trail which would be present if a bank transfer was made.

[17] The 2009 payments were made shortly before the deceased went to the Middle East. The £900 paid in on 8 June 2009 was withdrawn from the deceased's account later that same day. All of the money deposited on 5 and 8 June was withdrawn. The deceased had booked return flights between London and Aleppo in Syria. The outward flight was to leave London on 12 June with a return date on 3 September. This could be related to the deceased's statement in the email sent shortly before his death that he had travelled to the Middle East for Jihad. According to the expert Jihad could be a reference, depending on context, to a personal struggle for fulfilment or a violent struggle. In addition, Dr Levitt gave evidence that terrorists required funds for day to day living expenses.

Leaving Luton

[18] Between October 2005 and April 2009 the appellant lived and worked in Luton. He had a false identity which he had purchased in the name of Emmanuel Philipe Bernard. He had a passport, a National Insurance Number and a bank account in that name. It was not uncommon for illegal immigrants to obtain false identification in order to get work. The appellant had a number of friends in Luton, including the deceased, and he was part of a close knit Arab community who would meet in cafes and the local mosque. The appellant went absent from his work in early April 2009. He attended a disciplinary meeting on 22 May 2009 to discuss his absence and the company agreed to keep his job open for him as long as he returned to work by 15 June 2009, which, in the event, he did not do.

[19] The appellant left Luton and went to Liverpool where he claimed asylum under a false name of Ezzeden Khalid Ahmed Al-Khaledi or variants thereof. He was sent to Glasgow by the relevant office in Liverpool. The friends of the appellant in Luton did not know that he had made an asylum claim and he gave them the impression that he had gone to Scotland to find a job. The contention of the Crown was that the appellant had left Luton and a comparatively secure job in order to conceal what he was up to.

Mobile phones, computers and emails

[20] The appellant used two mobile phones which were registered to other persons. According to Dr Levitt the use of mobile phones belonging to other people was a method used by terrorists as well as other criminals. The telephone records showed that during 2010 there were many telephone calls between numbers associated with each of the appellant and the deceased. In April 2010 there were 102 calls. On 11 December 2010, within a period of two hours before the explosion the deceased telephoned a telephone in possession of the appellant without apparently getting through. The only number which he called thereafter was that of his mother.

[21] The appellant did not buy his own laptop but used other people's computers to access his emails. This too was described by Dr Levitt as a method used by those involved in terrorist activity. The appellant used laptop computers belonging to Ahmed Aleiadeh and John Lynn. These had been used to access the appellant's own email addresses. Emails from the deceased had been viewed on them.

[22] There was evidence of the contents of email communication between the appellant and the deceased. On 10 June 2010 there was an email from the deceased to the appellant urging action against the Danish economy in protest against insulting drawings of the prophet in the Danish media. On 30 August 2010 the deceased sent an email to the appellant forwarding images suggesting that Muslim people were being targeted or prejudiced because they dressed differently. On 2 December 2010 the deceased sent an email to the appellant attaching a link to an extremist website, although there was no evidence that the appellant actually accessed the website. On 4 December 2010 the deceased sent an email to the appellant attaching photographs of burned bodies of American troops. On the same day there was an email from the deceased to the appellant and others which was full of references to death and the joy of departing for Janna or paradise.

[23] There was evidence of an email sent from one of the appellant's email addresses to the deceased giving details of the appellant's other email address and what appeared to be a password for it. It was suggested that this could only have been for the purpose of enabling the deceased to access the appellant's email account. Dr Levitt described a method which he had encountered whereby individuals involved in terrorism and other criminal conduct might communicate with each other in a clandestine way by sharing the password for an email account. This allowed the individuals involved to communicate through draft emails which could be read and exchanged without the emails ever being sent. The password, or what appeared to be a password, for the appellant's second email account was "0911 Bernarde 0911". The Crown suggested that the references to 0911 could be interpreted as a reference to the attack on the World Trade Centre on 9 November 2001.

Other adminicles of evidence

[24] Evidence was given by a Mr Alkandari who lived in Glasgow and knew the appellant. Some months before the bombing in Stockholm the appellant had said "I know a terrorist". Mr Alkandari could not recall the context of the remark and said that he did not know whether the appellant was joking; it was, he said, like a joke and they laughed when he said it. Mr Alkandari also gave evidence to the effect that when he learned of the death of deceased the appellant was sad and said that he hoped that the deceased would be accepted as a martyr.

[25] Between 8 and 14 October 2010 the appellant went to France. Before he went he left two bank cards and the relevant PINs with Mr Alkandari telling him that if for any reason the appellant did not return from France the cards and the numbers were to be given to the deceased.

[26] When the appellant was interviewed by the police on 18 December 2010 he denied that he had any connection with the person responsible for the suicide bombing in Sweden. He was well aware that that person was the deceased. This, the Crown contended, was an attempt to distance himself from the deceased.

Submissions on ground of appeal 1

[27] Both at the trial and in submissions to this court the Crown relied on the circumstantial evidence outlined above to submit that there was sufficient evidence to allow the jury to infer that the appellant was guilty of sub-head (c) while acquitting him of the conspiracy. The advocate depute submitted that the criticisms made of the trial judge's charge were not well founded.

[28] Mr Taylor identified a number of pieces of evidence on which the Crown relied to found the inference that the appellant knew or had reasonable cause to suspect that the money would or may be used for the purposes of terrorism and subjected them to criticism. He submitted that individually and cumulatively they did not found a basis for drawing the necessary inference.

[29] Mr Taylor submitted that the fact that the appellant had purchased the identity of Emmanuel Bernard and opened a bank account in Luton had nothing to do with terrorism. In relation to the decision of the appellant to move from Luton, which the Crown said was to distance himself from the deceased and to enable him to give financial assistance to the deceased, Mr Taylor pointed out that the appellant's existence in Luton depended on his having a false identity which, if discovered, could lead to his deportation. The appellant was an Algerian and it would be highly unlikely that an Algerian would be granted asylum. The best nationality to adopt was that of a Bidoon, a stateless people in Kuwait. Mr Taylor submitted that the decision of the appellant to apply for asylum in an assumed name had nothing to do with terrorism.

[30] In relation to the frequent contact between the appellant and the deceased by telephone and email Mr Taylor pointed out that no email containing incriminating material had been recovered. He said that the evidence had shown that in order to open "bulk" emails which praised the activities of terrorists it was necessary to have a user name and a password. There was no evidence that the appellant had such access. It was plain from the records that the appellant used his phone a great deal and less than one in ten of the calls were between the appellant and the deceased.

[31] In relation to the transfer of money Mr Taylor submitted that the transfer of money provided the actus reus of the offence but was not of any assistance in relation to the state of mind of the appellant. The deceased was abusing the social security and educational grant system in Sweden. He had at least one secret bank account.

[32] In relation to the evidence that the appellant had left two bank cards and the relevant PINs with Mr Alkandari, Mr Taylor pointed out that the only travel documents that the appellant had with him were in the Bernard identity. There was a distinct possibility that on the trip to Paris something might happen to him if the authorities became suspicious of him. He had given the cards to Mr Alkandari as a precaution. Mr Alkandari was a rich Kuwaiti who was a dental student and lived in an apartment in the centre of Glasgow, which was a meeting place for the appellant and his friends. Accordingly, all that the appellant was doing was placing the cards in a safe pair of hands.

[33] In relation to the payment of £1,000 into the account of Hemel Tellis, Mr Taylor pointed out that she was a close friend of the widow of the deceased. This was simply an act of kindness on the part of the appellant towards the widow of the deceased. While the courts in England had held that giving money for the purpose of looking after the widows and children of suicide bombers could be for the purpose of supporting terrorism, it was also true that neighbours would exercise human compassion on a woman who was widowed. There was no evidence that the deceased knew before his death that the appellant would give money to his widow. In relation to the statement by the appellant that he knew a terrorist, Mr Taylor pointed out that Mr Alkandari thought that it was a joke because the appellant had laughed. Mr Alkandari said in evidence that the appellant's views generally were normal and he never felt uncomfortable with him. The context was of a venue where Middle Eastern students met and there were frequent discussions which included discussion of terrorism.

[34] In relation to the evidence that the appellant allowed the deceased to access his email account by giving the email address and password to him so that a draft email could be read and destroyed, Mr Taylor said that although a draft email which had been deleted could not be recovered there was evidence from an expert that the fact that it had been deleted would be something that was still detectable on the machine. When the computer was examined there was no trace of any such action. This indicated that this method had not in fact been used.

[35] In relation to two mobile numbers being attributed to the appellant, Mr Taylor submitted that the evidence of the providers had been that these phones had been openly supplied in the offices of the providers and that monthly payments were made. There was nothing clandestine about the way in which this was done.

[36] In relation to the denial by the appellant of having any link to the person who had carried out the suicide bombing in Sweden, Mr Taylor submitted that all that the appellant was doing was denying a link to the person in the context of a bombing.

[37] Although the deceased had attempted to contact the telephone of the appellant on two occasions on the day of his death, no connection had been made and no message was left. It was also significant that the appellant was not included in the list of people to whom the deceased sent his last message.

[38] Mr Taylor was critical of certain aspects of the Crown written submissions. In relation to the contention at paragraphs 3.9.1 and 3.9.2 that the deceased had undertaken a course of conduct for a number of years for the purpose of terrorism and had travelled to the Middle East for training, Mr Taylor submitted that there was no evidence of years of conduct by the deceased and the only evidence as to training came from his suicide message. The bombing was the work of an incompetent amateur who had followed instructions in a magazine. Part of the ignition of the bomb involved the use of broken Christmas tree lights. This was not indicative of a man who had been trained in the making of bombs.

[39] Mr Taylor took issue with what was said at paragraph 3.9.3 in relation to the evidence of Dr Matthew Levitt. At that paragraph reference was made to his report which included reference to an analysis of the conduct of the appellant and the deceased and how it could be interpreted as a course of terrorist conduct. As noted earlier, Dr Levitt had been restricted to giving evidence of a general nature in relation to matters of terrorism; he did not give evidence specifically relating to the appellant or the deceased.

[40] In relation to paragraph 3.9.6 Mr Taylor pointed out that the evidence of Ahmed Aleiadah that the appellant was upset was two days after the date of the deceased's death when the appellant saw news of it on a bus. The Crown's written submissions suggested that this happened on the day of or the day after the death of the deceased.

[41] In relation to paragraph 3.10.1 in which the Crown submitted that the appellant had a stable life in Luton before 'disappearing' into the asylum system under a false identity which made him untraceable and that this indicated that he had made significant attempts to conceal his identity, Mr Taylor pointed out that the deceased had a false identity when he lived in Luton and was therefore liable to be discovered. He was as well off in Glasgow as in Luton. In Glasgow he was granted permission to stay and got a flat and was applying for jobs. The contention in paragraph 3.10.5 that his income consisted of state benefits and meagre earnings as a kitchen hand in restaurants and was earning far less than he was in Luton was to be seen in a similar light.

[42] In relation to paragraph 3.10.8 where the Crown referred to the timing of payments from the appellant to the deceased being in relation to other known events including the purchase of materials, Mr Taylor pointed out that the bomb making materials were purchased by the wife of the deceased on her account; the deceased had bought a car in Sweden three days before the bombing and his sister accompanied him when he bought the pressure cookers.

[43] Against that background Mr Taylor submitted that the trial judge had misdirected the jury by leaving it open to them to convict the appellant of sub-head (c) as a stand-alone charge. The trial judge had not directed the jury to any evidence which would justify a conviction on sub-head (c) alone. The reason for that, said Mr Taylor, was that there was none.

Decision on ground of appeal 1

[44] It is well recognised that in a circumstantial case it is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself. What matters is concurrence of testimony, and the inferences that are available to be drawn by the jury when viewing the circumstances as a whole. The nature of circumstantial evidence is such that it may be open to more than one interpretation and it is for the jury to decide which interpretation to adopt. There may be evidence which is inconsistent with the guilt of the accused and a jury in considering all the evidence are entitled to reject the inconsistent evidence if they so choose (Al Megrahi v HM Advocate 2002 JC 99 at p 111). The criticisms directed by Mr Taylor at individual pieces of evidence must be considered in the light of these propositions. It was for the jury to assess all of the evidence, taking into account the submissions advanced by counsel as to its quality and the inferences which could be drawn from it.

[45] We are satisfied, that having regard to the whole circumstances to be found in the chapters of evidence which we have set out above, it was open to the jury to draw the inference that the appellant knew or had reasonable cause to suspect that the payments that were admittedly made were or might be used for the purposes of terrorism. In order to prove a contravention of section 17 of the 2000 Act it was not necessary to prove knowledge of any specific act of terrorism.

[46] Accordingly, in our opinion the trial judge was correct at page 35 of his charge to direct the jury that it was open to them to find the appellant guilty of sub-head (c) while acquitting him of the conspiracy charge. When he returned to a consideration of sub-head (c) at pages 45-46 he repeated that legal direction before going on to caution the jury as to the care which they would require to take in assessing the evidence in support of sub-head (c) if they were not satisfied that the appellant was a conspirator in relation to the Stockholm bombing. When the jury sought further directions the trial judge followed the same approach. In our opinion the trial judge did not misdirect the jury in these passages. He gave them correct directions in law and was favourable to the appellant in directing the jury as to the way in which they should approach the facts. In our opinion this ground of appeal is not well founded.

Ground of Appeal 4

[47] Ground of Appeal 4 relates to the evidence of Omar Menni, the brother of the appellant, who was called by the Crown as a witness. In the course of his evidence he gave an innocent explanation for the payments made by the appellant into the bank account of the deceased in 2010. Omar Menni explained that the money was ultimately intended for the benefit of members of the Menni family in Algeria. The appellant made the payments to the deceased who, in turn, made a payment of around £5000 in cash to Omar Menni. He, Omar, then took the money in cash overland to Algeria for family members there. The advocate depute suggested to him that this account was untrue. Although it was contended in the ground of appeal that the Crown had challenged the reliability and credibility of Mr Menni without in the course of the trial setting forth any basis entitling it to do so and it was averred that the trial judge erred in repelling a defence objection in this regard, Mr Taylor accepted in his oral submissions that that aspect of the ground of appeal was not well-founded.

[48] Mr Taylor complained that the advocate depute had not taken Mr Menni to certain documents and invited the trial judge to direct the jury that if Mr Menni had seen the documents he might have given different answers. It appears that while the advocate depute confronted Omar Menni with certain of his bank statements he did not put to him other contradictory evidence for his comment or refer him to other documents on which the advocate depute relied in his speech to the jury to undermine the evidence of the witness. In his report at page 17 the trial judge records what happened as follows:

"The Crown suggested to Omar Menni that he was lying and that he had concocted a story while visiting the appellant, who was on remand in Barlinnie. The advocate depute, in his address to the jury, pointed out a number of pieces of evidence which tended to contradict him. There was evidence which would entitle the jury to reject it. It came from a witness Claire Meina and an examination of the deceased's Natwest Bank statement, Crown Production 224. Omar Menni said that he left on 7 June 2010 for Algeria and that he had spoken to the accused about the transfer of money to the deceased after he decided to go on the trip. He said he had decided to go on the trip two or at most three weeks before he left. Two weeks before 7 June would have been 17 May, which was a week after the first payment of £1,125 was made. In those circumstances that payment could not have been for any purpose connected with any trip to Algeria. Omar Menni was clear that the deceased had given him over £5,000 plus some change and estimated the final figure as around £5,425 in £50 notes no more than a week before he left for Algeria on 7 June 2010. The final payment made into the account was 3 June, which was less than a week before the trip. However, the total sum paid into the deceased's account by the appellant was only £4,225. There was a question why the first two payments were retained by the deceased until he had received the third payment. Mr Menni's evidence was, it was said, contradicted by an examination of the deceased's account. Before receipt of the first deposit of £1,525 on 10 May 2010 the account was £41.68 overdrawn. The only withdrawals from the account between the receipt of that deposit and the alleged date of Omar Menni's departure for Algeria amounted to £2,260, far less than the sum of over £5,000 which Omar Menni claimed to have received. The positive balance generated in the deceased's account by the three deposits was not exhausted until a withdrawal of £1,000 on 12 July, about two months after the date of the first deposit, which brought the balance down to less than £20.

The general pattern of use of the deceased's account after receipt of the £2010 deposits tended to contradict Omar Menni's evidence. Lastly, Omar Menni said that he went to Algeria on 7 June for about two weeks and did not want the money from the appellant to be paid into his account directly because he knew he would lose his job as a result of his absence from work and was concerned that the receipt of sums into his account before the trip might affect his benefit status after he returned because the authorities would check his bank statements. However, his bank statements (Productions 750 and 755) showed that he received money from his employers at the end of both June and July 2010 so it would appear he was still working. That aspect of the evidence was taken from Mr Menni."

[49] Mr Taylor contended that what the trial judge had said at pages 46-47 of his charge was insufficient adequately to deal with the failure of the advocate depute to put to Omar Menni the evidence and documents on which he relied in his address to the jury. What the trial judge said in this part of his charge was this:

"The advocate depute has suggested that he [Omar Menni] was lying and has, in his address, drawn your attention to a number of facets of the evidence which he says demonstrate that to be the case. On the other hand, it is fair to point out that while he put it to Mr Menni that he was lying, you will remember his response to that suggestion, and it's only right, also, to point out that the various factors relied on by the Crown were not put to him for his comments, so we don't know what explanations, if any he might have given for them."

[50] Before us the advocate depute explained that the Crown's purpose in calling Omar Menni was to confirm the identity of the appellant. The trial advocate depute was entitled to challenge the evidence of Omar Menni in relation to the money; that evidence was not consistent with the other Crown evidence in the case. The advocate depute submitted that the trial advocate depute had put contradictory evidence to the witness when he confronted him with certain entries in his bank statements.

[51] In addition to the report of the trial judge we have had the advantage of reading the transcript of the evidence of Omar Menni. Having done so we are satisfied that it was entirely appropriate for the advocate depute to challenge parts of his evidence as being untrue. His position was contradicted by the entries in his bank accounts, which were put to him. As to the other evidence on which the advocate depute relied when he was addressing the jury to undermine the evidence of Omar Menni, it seems to us that the trial judge adequately dealt with the failure by the advocate depute to put certain other evidence and documents to Omar Menni for his comment by the directions which he gave in the passage from his charge which we have quoted above. In our opinion this ground of appeal is not well founded.

Disposal
[52] In the result we shall refuse Grounds of Appeal 1 and 4 and continue the appeal for consideration of Grounds 2 and 3.