Act: J. Carroll, solicitor advocate, G. Considine, solicitor advocate; McClure Collins, Edinburgh

Alt: K. Stewart, A.D.; Crown Agent

9 January 2007

The background circumstances

[1] The appellant, along with four other persons faced an indictment containing three charges, which all arose out of a single incident that occurred on 10 March 2004 at 104 Knapdale Street, Glasgow. Each charge affected all five accused. Charge (1) alleged that on the date and at the place in question the accused did:

"whilst masked and whilst acting along with others whose identities are to the Prosecutor meantime unknown, conduct yourselves in a disorderly manner, smash windows and doors there, force entry to said house, threaten violence, place Siobhan Higgins, Scott Higgins, James Higgins, Robina Higgins, Taylor Higgins, born 20 October 2000, Gillian Morses and Michelle Golding, all residing there, in a state of fear and alarm and commit a breach of the peace."

Charge (2) alleged that on the date and at the place mentioned the accused did:

"whilst masked and whilst acting along with others whose identities are to the Prosecutor meantime unknown, assault Scott Higgins, residing there, punch and kick him on the head and body, repeatedly strike him on the head and body with baseball bats and similar implements, strike him on the head with a toaster and repeatedly strike him on the body with a knife to his severe injury, permanent disfigurement and permanent impairment and attempt to murder him and you DAVID MILLER McGILL did previously evince malice and ill-will towards him."

Charge (3) alleged that on the date and at the place mentioned the accused did:

"whilst masked and whilst acting along with others whose identities are to the Prosecutor meantime unknown, assault James Higgins, residing there, repeatedly punch and kick him on the head and body, repeatedly strike him on the head and body with baseball bats, pick axe handles and similar implements and repeatedly strike him on the head and body with knives or similar instruments whereby he was so severely injured that he later died at the Royal Infirmary, Glasgow and you did murder him."

[2] On 13 September 2004 in the High Court at Glasgow, after trial, the appellant was found guilty in respect of charge (1) and guilty of culpable homicide in respect of charge (3); charge (2) was found to be not proven against him. The first-named accused David Miller McGill was found guilty in respect of charge (1). On charges (2) and (3) he was acquitted. The third-named accused, Michael Fairley was acquitted on all charges. The fourth-named accused William Niven was found guilty in respect of charge (1). He was acquitted on charges (2) and (3). The fifth-named accused, Michael Christopher Fairley was found guilty in respect of charge (1) and guilty of culpable homicide in respect of charge (3). Charge (2) was found not proven against him. Thereafter, the appellant was sentenced to 18 months imprisonment in respect of charge (1) and 9 years imprisonment in respect of charge (3), these periods of imprisonment to run concurrently from 19 March 2004.

[3] The events which gave rise to these verdicts, as described by the trial judge in his Report to this court, were as follows. All accused were related, either by blood or by marriage, and were referred to collectively by various witnesses as "the Nivens". All three charges related to events which occurred on 10 March 2004 at the house at 104 Knapdale Street, Glasgow, the home of a family whose names were Higgins. The appellant and David Miller McGill lodged special defences of alibi. Scott Higgins, the complainer in charge (2) was the "son of the house". James Higgins, the complainer in charge (3), was the "father of the house". He was brutally assaulted to such an extent that he later died in hospital.

[4] On the evening of 10 March 2004 the Higgins family were all at home with others engaged in various innocent activities. At about 9.20 p.m. "all the windows came crashing in". There was a lot of noise. Mrs. Higgins was upstairs preparing a birthday basket. Her children kept her in a bedroom. The accused McGill came up the stairs, banged on her door in an attempt to gain entry and shouted "Come out you fucking bitch. You're getting it next." When she did come out, she saw her son Scott lying bleeding on the stairs. Her husband she discovered lying in the back garden. He was clearly in a bad way. She summoned assistance.

[5] Scott Higgins had been aware that there might be trouble that night. He and David Miller McGill had had a fight before that over some unproved allegations relating to one of "the Nivens", not accused, having sexually abused Scott's sister. The police had been aware of these allegations and a prosecution had resulted. On the evening of 10 March 2004 he had been in his bedroom with other members of his family, three females and a child, when the windows were smashed. He ran downstairs with a knife he had left in his room in expectation of trouble. He saw McGill with a "bat" and a knife. As he got downstairs he saw three of the intruders attacking his father James in the kitchen. They were hitting him with bats and trying to drag him out to the back garden area. McGill attacked him, Scott. They ended up fighting in the back garden. While he was there, his father was dragged into the garden. More people appeared from the side of the house. Scott and James were then attacked by about eight people with "bats" and hands. One of the persons who came from the side of the house was the appellant, who was known to Scott. He had been fighting with Scott. Scott tried to go to the assistance of his father, but was prevented by those outside from doing so. The first police officer on the scene was PC Murray. She saw James Higgins badly injured in the garden. She asked who had done this to him. He replied "David McGill and the Nivens". Dr. Marjory Black performed a post-mortem examination of the deceased James Higgins. She was able to identify about 50 different sharp and blunt-force injuries about his body, which had led to his death.

[6] One Thomas Gabriel, aged 16, lived across the road from the Higgins. He had heard all the noise and went to investigate. He saw persons in and around the Higgins' house. He was able to identify McGill and the appellant. He identified the appellant as a figure whom he had seen going by the garage in the Higgins' back garden running towards the front of the house. He identified him by his height and build. He knew him. He had picked him out at an identification parade. He accepted that he could have been wrong. In cross-examination he affirmed that the appellant was the tall, skinny guy he saw going by the garage. He was known as "Jinxy". Although what he saw was little more than a shadow, he connected what he saw with the appellant.

[7] Gail Sheer lived directly opposite the Higgins' house. She had heard crashing and screaming from that house and looked out of her window. She saw a number of people coming out by the side door of No. 104 and walking up Knapdale Street. She counted eight in all. They were all carrying what she thought were baseball bats. Some wore balaclavas and others Tam O'Shanters. She telephoned the police and was able to give them a commentary of what she was watching. She was terrified.

[8] Catherine Kennedy, an auxiliary nurse, was walking her dog in Knapdale Street. Just after 9 she saw men get out of a car and go to the Higgins' house. She saw one of them smash the livingroom window with a baseball bat. Another smashed the door. She heard shouting and swearing and a lot of commotion. In the back garden of No. 102, where the deceased was found, she saw James Higgins with his hands over his head. There were four men round him hitting him with baseball bats or something like that. He was not defending himself. She walked away. When she came back they were still hitting him. He went down. They continued hitting him. She was physically sick.

[9] Dr. Milburn, a police surgeon, on 18 March 2004 examined the appellant, who declined to give a sample of blood on the advice of his lawyer. This doctor noted three bruises to the right forearm, which could have dated from 10 March and were consistent with blunt injury.

[10] DS Gemmell was a scenes of crime manager. He examined the locus and the surrounding area and retrieved a number of items. In particular, in a nearby garden he found a pick axe handle and a knife. That garden was at 70 Hillend Road, about 200 metres from the Higgins' house. There was glass embedded in the pick axe handle and fresh damage to it. There was also blood, later identified as that of the deceased.

[11] Alan Lowe was a contracts manager with a gas company. He worked with the appellant. Shortly after the events of 10 March 2004, the appellant came to stay with him for a night. He needed somewhere to stay. Mr. Lowe knew something was wrong. The appellant said his family was in trouble and he had to get away for the night. He said that the appellant had told him of his part in the trouble. He had said it was something that had got out of hand, out of control. He told Mr. Lowe what he did "I went in and hit him twice with a bat and others went in and went stabbing mad".

[12] The appellant himself gave evidence to the effect that for 17 years he had lived with one Dorothy Niven. He was not involved at all with the events at the Higgins' house on 10 March 2004. He did not even know who lived there. On the evening of that day he was at home. At about 7.30 p.m. he went out to buy a lottery ticket. On the way he went to McGill's house to ask after their new baby. He returned home. Just after 9 p.m. he took his dog out for about 10 minutes. He had never been near Knapdale Street, although he lived nearby. He had not heard anything. He went to bed at about 10 p.m. The following day his wife had been very upset about a telephone call. As a result of this he had taken his wife and son to stay with her sister. His wife said she had received threats about the incident the night before. He stayed with Alan Lowe. He did speak to Alan Lowe about the incident. He told him that someone had "got hit" with a bat. He might have read it in the paper. He did not say that he had been involved. Dorothy Niven confirmed in evidence that the appellant had been out for only 10 to 15 minutes that night to walk the dog. He was "normal" when he got back. The appellant's daughter, aged 13, had given similar evidence.

[13] Since it has come to possess significance in this appeal, it is appropriate to narrate here a summary of the Crown's presentation of their case to the jury. That is set out in the terms of the speech to the jury of the Advocate depute, delivered on 8 September 2004, and recorded in the transcript for that day. Consideration of the transcript shows the Advocate depute offered an explanation of the doctrine of concert, shortly after the commencement of his address, at page 3 of the transcript. Thereafter, at page 4 he stated that he was presenting the case to the jury on the basis that each of the accused was involved in the raid on 104 Knapdale Street in such a way that each was guilty of all that was done, without the necessity of proving in any detail the individual parts played by each accused, although he recognised that in fact there was a substantial amount of evidence about their individual parts. However, the Advocate depute did not in fact pursue that general approach to the application of the doctrine of concert to the circumstances of the raid. From page 9 of the transcript onwards he considered in detail and invited the jury to consider in detail the parts actually played by the several accused in the events of the evening. He came to deal with the position of the appellant at page 29 and the following pages. At page 31, he suggests "that the fight with Rooney must have been part at least of Scott Higgins' getting to his father's side to help him." The Advocate deputed summed up the Crown case against the appellant at page 33 in this way:

"On the evidence of Scott Higgins Thomas Rooney not only got involved in fighting but fought Scott Higgins and must have done so about the time that Scott Higgins was trying to get to his father to help him. Rooney was present. He knew that bats were to be used because he had one and used one himself. He contributed to preventing Scott Higgins getting to his father. He aided the generality of what was going on by his presence, his encouragement, his use of the bat. You are fully entitled to convict him on all three charges and that is what I ask you to do."

That approach of the Advocate depute was briefly reiterated at page 54 of the transcript.

The grounds of appeal

[14] The appellant has tabled three grounds of appeal in support of his appeal against conviction. It is unnecessary to be concerned with ground (1), since it was not argued. Ground (2) is in the following terms:

"That the verdict of the jury was perverse and contrary to the evidence and, there being no evidential basis upon which - even inferentially - it could be founded, was a miscarriage of justice".

In elaboration of that ground, the appellant has stated several specific points:

"(i) The Crown position was that the appellant was involved in an attack

upon the complainer Scott Higgins and if that involvement got in the way of Scott Higgins joining and assisting his father, the now deceased, then it was difficult to see how this excluded him from the murder. The Crown case was the appellant had contributed to or assisted in the murder of the deceased by his attack upon Scott Higgins.

(ii) It was not part of the Crown's case that the appellant was directly

engaged in the attack upon the now deceased, there being no evidence to support such a proposition.

(iii) The appellant had lodged a special defence of alibi. The Crown's

position to the jury in relation to this alibi was a choice between two extremes, that it was either true or the appellant was guilty of murder.

(iv) The Crown's position was set against evidence whereby it was said that the fatal attack upon the now deceased took place in a part of the rear garden that was in almost complete darkness. Witnesses spoke only to seeing shadows and silhouettes. No witness spoke to seeing the appellant engaged in an attack upon the deceased. There was no evidence to show that the appellant was aware of the attack upon the deceased. The Crown had led no evidence that the appellant acted aggressively towards the deceased either as actor or in concert with any other person.

(v) The jury acquitted the appellant of the charge relating to the alleged

attack upon Scott Higgins.

(vi) The aforementioned acquittal was in direct contrast with the Crown's

position on the evidence.

(vii) The acquittal evidences the jury's determination that the appellant had

not acted towards Scott Higgins as the Crown had stated.

(viii) There being no other evidence implicating the appellant in an attack

upon the now deceased, the verdict of the jury on charge (3) should have been one of acquittal."

Ground (3) was in the following terms:

"That in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 the verdict returned by the jury was a verdict which no reasonable jury, properly directed, could have returned and accordingly there has been a miscarriage of justice. That the quality, character and strength of the evidence led in support of the charge was such that the jury should have entertained a reasonable doubt as to the guilt of the appellant."

In elaboration of that ground the appellant has stated several particular points:

"(i) The Crown had led no evidence that the appellant acted aggressively

towards the deceased either as actor or in concert with any other person.

(ii) The Crown case was that the appellant was engaged in a fight with the

complainer Scott Higgins.

(iii) The Crown case against the appellant was that he had contributed to or

assisted in the murder of the deceased by his attack upon Scott Higgins and thereby preventing him from assisting his father.

(iv) It was not part of the Crown's case that the appellant was directly

engaged in the attack upon the now deceased, there now being no evidence to support such a proposition.

(v) The jury acquitted the appellant of the charge relating to the attack
upon Scott Higgins.

(vi) The aforementioned acquittal was in direct contrast with the Crown's

position on the evidence.

(vii) The acquittal evidence is the jury's determination that the appellant
had not acted towards Scott Higgins as the Crown had stated.

(viii) There being no other evidence implicating the appellant in an attack

upon the now deceased, the verdict of the jury on charge (3) should have been one of acquittal."

Submissions of the appellant

[15] Mr. Carroll for the appellant explained that grounds of appeal (2) and (3) were closely linked. The verdict on charge (3) of guilty of culpable homicide was argued to be perverse in the light of the acquittal of the appellant on charge (2). The approach that had to be followed in an appeal based on the provisions of section 106(3)(b) of the 1995 Act had been explained in King v H.M. Advocate 1999 S.C.C.R. 330. There had been a body of evidence to show that the appellant had been involved in violence with Scott Higgins, thus preventing him from going to the assistance of his father. That had been the foundation of the Crown's case against the appellant on charge (3). In other words charge (2) was fundamental to the Crown's case against the appellant in relation to charge (3). It appeared to have been assumed that the outcome of charges (2) and (3) would be the same. The trial judge would have proceeded upon the basis that the appellant was preventing Scott Higgins from rescuing his father, as the basis for the case against him on charge (3). Despite the alleged confessions to Mr. Lowe by the appellant, without the evidence of Scott Higgins regarding the appellant's conduct towards him, there was insufficient evidence to convict the appellant on charge (3), the confession not being represented to have been a special knowledge confession. It was true that there had been evidence relating to a shadowy figure at the side of the house some 5 minutes after David McGill had left the scene from Thomas Gabriel, but that evidence could not be regarded as corroborative of the admission. Consideration of the Advocate depute's speech to the jury at pages 34-35 of the transcript showed that the Crown were relying upon the subject-matter of charge (2) as the basis for the conviction of the appellant on charge (3).

[16] If it were to be suggested that the appellant's presence as part of an armed gang which had assaulted the Higgins' residence and its occupants could itself be a basis for conviction on charge (3), that suggestion would be unsound, since the evidence of the actings of the group did not place the appellant actually inside the house. While it had to be accepted that the evidence of Scott Higgins extended to matters beyond the subject-matter of charge (2), and while the jury may have accepted his evidence in certain respects, it was impossible to say to what extent. Plainly the jury had rejected the material parts of Scott Higgins' evidence, although it was quite plain that he had in fact been assaulted. Having regard to the manner in which the Crown case had been presented to the jury, it could justly be said that the jury's verdict was irrational. The appeal ought to be allowed.

The submissions of the Crown

[17] The Advocate depute moved the court to refuse the appeal. There was ample evidence to support the verdict on charge (3) against the appellant. The jury's decision had not been perverse. In the circumstances of the attack upon the Higgins' household, the well-recognised principles of guilt by concert could be invoked. Furthermore, for an appeal under section 106(3)(b) of the 1995 Act to succeed, the appellant's case had to pass a demanding test. It had not done so.

[18] The Advocate depute next embarked upon an analysis of the evidence, dealing first with that of Scott Higgins. He had seen three persons hitting his father and trying to drag him out to the back garden. More assailants had appeared, including the appellant. The witness himself had been attacked. Later he saw his father seriously injured on the grass at the back of the house. The witness Gail Sheer had heard crashing and had seen eight persons in total with baseball bats, wearing balaclavas, etc. She had seen four persons hitting the now deceased. Thomas Gabriel had heard the smashing of glass. He had contacted the police. He saw David McGill with what looked like a table leg. He had seen a shadowy figure whom he identified as the appellant running at the side of the house, although it was accepted that occurred a significant time after the attack on James Higgins had come to an end. In all the circumstances it was reasonable to infer that the appellant had been involved in the assault on the now deceased. The locus was not a large one and it was plain that what had occurred was a planned assault upon the Higgins' house and its occupants. In addition, there was the admission by the appellant to Mr. Lowe, which could be read as relating to an assault upon James Higgins.

[19] Turning to relevant authorities, the Advocate depute relied on Black v H.M. Advocate 2006 S.C.C.R. 103 and McKinnon v H.M. Advocate 2003 S.C.C.R. 224, particularly paragraphs 27 and 28. It was not necessary for the Crown to demonstrate individual criminal intent where concert was involved. It was quite plain that all of the participants in the attack had been involved in a pre-arranged plan and were armed with baseball bats, potentially lethal weapons which, according to the former case, could be equiparated with knives. The Advocate depute also relied upon passages from Hume, Commentaries vol. 1 at pages 260-267. It was of great importance that Scott Higgins had given evidence of the appellant being in close proximity to James Higgins. The criminal attack upon the latter had been materially assisted by the appellant's involvement with and distraction of Scott Higgins, who could otherwise have gone to the aid of his father. In this connection reference was made to McKinnon and Ors, v H.M. Advocate at paragraphs 30 to 32. When pressed concerning the fact that the appellant had been acquitted on charge (2), the Advocate depute submitted that that might have occurred if the jury had made a moral judgment on the position of Scott Higgins, although such a course would have not been proper. A possible position of the jury might have been that they were not prepared to accept Scott Higgins' evidence except where it was supported by independent evidence. For that reason the admission of the appellant was of great importance. The court also had to bear in mind that there was evidence from the witnesses who had seen the incident from the other side of the road.

[20] The Advocate depute then drew attention to the provisions of section 106(3)(b) of the 1995 Act and to the cases of King v H.M. Advocate and A.J.E. v H.M. Advocate 2002 S.C.C.R. 341, particularly paragraphs 28-31. That case could be distinguished from the present one because here there was no doubt whatever that the crimes involved here actually took place. As King v H.M. Advocate demonstrated, where there were irreconcilable bodies of evidence, it was classically the function of a jury to determine which to accept. The Crown's position was that the jury had made reasonable inferences in the circumstances of the present case, although it was difficult to understand precisely their reasoning. Each case of the present nature had to be dealt with on its own facts. In Donnelly v H.M. Advocate 2000 S.C.C.R. 861, the court had had to consider a conviction for murder. There had been a competing volume of evidence which the court regarded as a matter for the jury to resolve.

[21] It had to be borne in mind that the test to be applied in a case such as this was a high one. Section 106(3)(b) did not allow the court to interfere with a jury's verdict upon the ground that it was uneasy about it, or that the verdict was "unsafe", an English criterion. That test had been specifically rejected by the Sutherland Committee. While the speech of the Advocate depute to the jury at pages 29-33 of the transcript had presented to them a particular approach to the case. The trial judge, in his Charge, had made it plain that it was for the jury to make of the evidence what they thought fit and make such reasonable inferences from it as they wished. However, it had to be accepted that the evidence of Scott Higgins constituted a major element in the Crown's case against the appellant on charge (3). The court should not attribute undue importance to the submissions of the Advocate depute to the jury, standing the general directions which the trial judge had given to them regarding their own assessment of the evidence.

The decision

[22] Section 106(3)(b) of the 1995 Act is in these terms:

"By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such miscarriage based on - ...

(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

These words were authoritatively considered and interpreted in King v H.M. Advocate at page 333. There Lord Justice General Rodger said:

"In seeking to formulate the appropriate test we begin with the words of section 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious, first of all, that the jury will have returned a verdict convicting the appellant, since section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury, properly directed, could have returned. The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since, in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty. That formulation is not indeed dissimilar to the approach adopted in Webb (Webb v H.M. Advocate 1927 J.C. 92). The application in later cases of the test set out in Webb has been criticised as unduly restrictive (cf., Renton & Brown, Criminal Procedure, paragraph 29-03). It will be for the court in future to determine on a case-by-case basis the proper application of the test now stated in section 106(3)(b)."

[23] In the light of that test, it is now appropriate for us to look at the particular circumstances of this case, with a view to deciding whether the requirements of section 106(3)(b) have been met. One of the circumstances which require to be considered and which may cast light upon the character of the jury's verdict is the manner of presentation of the case to the jury, which we have summarised above. Looking at the way in which the Crown's case against the appellant was presented, it is plain that what was being alleged was that the appellant had fought with Scott Higgins with the object of preventing the latter from going to the assistance of his father, James Higgins.

[24] If one considers for a moment the more general approach to the application of the doctrine of concert to which the Advocate depute alluded in the early part of his speech, if the jury had pursued that approach, then the logic of it would have been that they would have convicted, among others, the appellant on all three charges. However they did not do so. One therefore must conclude that that is not the approach which they chose to follow. In view of the treatment of the case by the Advocate depute, in which he considered in detail the parts played by the various accused, it would not be surprising if the jury had themselves adopted that approach as their own. On that basis, if the case for the application of the doctrine of concert to the appellant was that he had sought to obstruct Scott Higgins from going to the assistance of his father James Higgins at a time when the latter was being assaulted, the logic of the approach would have required the appellant, if he were to be convicted on charge (3), also to have been convicted on charge (2), in respect to his assault upon Scott Higgins in the circumstances described. However, that logic was not followed. In these circumstances we are driven to conclude that the verdict of the jury on charges (2) and (3) in relation to the appellant lacks rationality. Standing his acquittal on charge (2), we consider that the verdict against the appellant on charge (3) in particular, must be regarded as one which no reasonable jury, properly directed, could have returned. Thus we conclude that the requirements of section 106(3) of the 1995 Act are satisfied in the circumstances of this case. In that respect a miscarriage of justice has occurred. We shall therefore quash the conviction of the appellant on charge (3) of the indictment and the sentence of imprisonment imposed in consequence of that conviction. To that extent the appeal is allowed.