APPEAL COURT, HIGH COURT OF JUSTICIARY
 HCJAC 68
Appeal No: XC702/05
OPINION OF THE COURT
delivered by LADY COSGROVE
THE REFERENCE BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case of
HER MAJESTY'S ADVOCATE
Respondent: A. Mackay, A.D.; Crown Agent
13 September 2006
 This is a reference by the Scottish Criminal Cases Review Commission ("the Commission") in relation to the conviction of the appellant at Glasgow High Court on 17 March 1983. The charges to which this reference relates were in the following terms:
"(4) on 7 October 1982 you WILLIAM PORTER ELLIOT, ALEXANDER BELL HOWAT and RONALD NEESON did enter the flat at 2 up (right) 30 Clouston Street, Glasgow with faces masked and there
(a) assault Avril Campbell or McGill or Sutherland or Rado ... push her and repeatedly strike her on the head with a wooden baton or similar instrument to her injury;
(b) assault Geoffrey James McLean ... and repeatedly strike him on the head, arms and body with a wooden baton or similar instrument to his injury; and
(c) assault Robert Kane ... knock him to the ground; repeatedly strike him on the head with a wooden baton or similar instrument and repeatedly stab him on the head, body and legs with a knife or similar instrument and you did murder him, and you WILLIAM PORTER ELLIOT did previously evince malice and ill-will towards said Robert Kane."
The appellant and William Elliot were convicted on all three heads. Alexander Howat was acquitted.
The evidence against the appellant
 The assaults and murder of which the appellant was convicted were committed at an address in Clouston Street, Glasgow on 7 October 1982. So far as the evidence led at the trial is concerned, it is sufficient for present purposes to narrate that neither of the two surviving victims, nor any of the three bystanders who saw three men enter the close at about the time, was able to identify the appellant as one of the assailants. The Crown case against the appellant depended upon the evidence of two witnesses. The first was Gerald Sharpe who identified the appellant as one of three men he saw emerge from a car in nearby Kelbourne Street at about the time of the attacks. A short time later he saw the same three men return to their car and drive off at speed. The second witness was John Elliot, the brother of the co-accused William Elliot. John Elliot said that he had been in the company of the appellant four days after the murder. In the course of a conversation with him, the appellant described the events in the flat in circumstantial detail. He admitted that he had stabbed the deceased twice in the "backside" and said that in the course of the attack two other people in the flat had been "battered". He said that the appellant told him that he was expecting a woman to provide him with an alibi for the night of the murder. The defence suggested that John Elliot gave false evidence in return for immunity from prosecution on certain charges, including drugs and firearms charges.
 The appellant and William Elliot each lodged a special defence of alibi to the effect that at the relevant time they were at a hotel in Glasgow. The appellant did not give evidence and no evidence was led in support of his alibi.
 The appellant appealed against conviction on the ground that there was no sufficient evidence of identification. The appeal was refused on the basis of the evidential principle established in Muldoon v Herron (1970) J.C. 30; (cf. Neeson v H.M. Advocate, 1984 S.C.C.R. 72). A petition to the Secretary of State for Scotland in 1995, alleging a miscarriage of justice on the basis of new evidence, was also refused.
 The Commission considered a number of reasons put forward by the appellant for review of his conviction. It has concluded that the case should be referred to us on only one ground, namely that the evidence of three new witnesses, William Gronan, Alexander Hardie and James Coyle is new evidence that was not available at the time of the trial and that there is a reasonable explanation why it was not available. The Commission is persuaded that if this evidence had been available, it could have been material to the credibility and reliability of John Elliot. If John Elliot had denied making the statements attributed to him by these witnesses, it would have been open to the appellant's counsel to lead those witnesses to establish the contrary position. The Commission concludes that since the credibility and reliability of John Elliot was a central issue, this new evidence may be considered significant, and that the jury's verdict, reached in the absence of it, may have resulted in a miscarriage of justice.
The appeal hearing on 17 May 2005
 At an appeal hearing on 17 May 2005 before this court, differently constituted, the appellant, in addition to his adoption of the ground of referral, argued three additional grounds of appeal, each of which was rejected by the court. At paragraphs  and  of the Opinion of the Court delivered by the Lord Justice Clerk, the court reached the following conclusions:
"We accept the Commission's view that the affidavits of the witnesses Gronan, Hardie and Coyle constitute new evidence and that there is a reasonable explanation why that evidence was not available at the trial. We agree that if that evidence had been led, it could have cast serious doubt on the credibility and reliability of John Elliot, and therefore on the Crown case. It is possible that this new evidence might be found to have such significance that a verdict reached in ignorance of it could be held to have constituted a miscarriage of justice.
In view of that possibility, we have decided to allow the appellant the opportunity to adduce evidence on this short and specific point. We understand that Gronan and Hardie are available to give evidence. Coyle is dead; but his affidavit will be available to the appellant for what it is worth (cf Gray and O'Rourke v HM Adv, unreported, 23 December 2004). The Crown too will be entitled to lead evidence on the matter, if so advised."
The additional evidence
 In the event, evidence was led on behalf of the appellant only from the witness William Gronan, Alexander Hardie having died on 13 April 2005. The affidavits of both of the deceased witnesses, Alexander Hardie and James Coyle, were before us and it is convenient to set out the terms of these affidavits at this stage.
 The affidavit of Alexander Hardie was made at Glasgow on 17 February 1993. It is in the following terms:
"1. I am Andrew (sic) Hardie residing at 18 Windsor Street Glasgow.
2. It would be about ten years ago now that I was in what was then known as Cameron's Bar in Carnarvon Street, Glasgow. I remember it was a weekday and the weather that day was good. I know a William Groonan, a scaffolder. Mr. Groonan went into the pub just before I did. In the pub there was also John Elliott whom I knew.
3. I observed that John Elliott was in what appeared to be a state of nerves and anxiety. He was rubbing his hands. He appeared to be perturbed and agitated and he was always going to the phone in the pub. He eventually said that he had done 'a bad thing'. I simply asked him what is it that you have done then or words to this effect and his reply was that he had to 'frame wee Ronnie.' He went on to say that he'd made an arse of it or words to that effect and said that he was facing a lot of years so it had to be one or the other but he further stated he was going to sort things out and go and see Mr. Beltrami, Solicitor, and put the record right.
4. John Neeson, a brother of Ronald Neeson, (and I know both of them) arrived at the public house. He, John Neeson appeared to be aware that Mr. John Elliott was intending to go to Beltrami's and what the reason for this was. I understood they were going in a taxi cab and John Neeson and John Elliott left together. John Elliott said he would be back, he was going to sell a car and he would have a right good drink with us. However, John Elliott did not return. I waited about 30 minutes or so and then left and went home for my meal. Before John Neeson and John Elliott left they were checking the Yellow Pages thing obviously looking for an address. I assumed that this was to check the lawyer's address.
5. It was some months after this that I was aware that there had been taking place a Trial of Ronald Neeson and John Elliott's brother. However I did not go to the police or any lawyer about the case, as I did not want to get involved. I was somewhat scared of John Elliott.
6. About ten days before the occasion above-mentioned I met John Elliott in Prison. I was on Petition at the time and I understood so was he. I was released and then obviously he had been released as well. My Solicitor at the time was Desmond Queen but the late Michael Hughes, Solicitor appeared for me at the Court. I wasn't proceeded against but neither did I get a letter or any form of communication that I would hear nothing more about it. I do not know whether any deal was done between the authorities and John Elliott or not."
 The affidavit of James Charles Coyle was made at Glasgow on 21 February 1993. So far as relevant for present purposes, it is in the following terms:
"1. I am James Charles Coyle residing at 65 Kempthorne Road, Pollok, Glasgow.
2. I know John Neeson and I also know Ronald Neeson but I would say that they are more acquaintances than anything else. Sometimes I used to be called out in connection with my employment driving a taxi to the Neeson householder so I got to know them but I really know Joe better. I used to drink with him when I was young.
3. I remember that at the time the events occurred which I am now speaking to Ronald Neeson was in custody waiting trial. I got a call from John Neeson to go to his house and to run him to a pub in the Charing Cross area called Camerons so he indicated he was going to meet somebody there and I drove him. It was around 5 p.m. and he left me outside in the cab waiting on him while he went in. Very speedily, a matter of a minute or so, he came out with this fellow John Elliot. John Elliot sat in the front seat and John Neeson in the back seat John asked him, Elliot, what street his, Elliot's lawyer was in and he Elliot could not remember but said that someone in the Pub would know so John Neeson went back into the pub and was gone about two minutes before he returned. John Elliot started telling me things. He said that what he had done had caused the Neeson's a lot of grief. He said he had even put his own brother in and his only excuse was putting it down to was to drugs. I said wait a minute I am only a taxi driver I don't want to know this sort of thing but he went on and said 'I am taking John to my lawyer I am going to retract whatever statements I have given against Ronnie.' John Neeson came back out the pub and I was told where to go I think it was somewhere in Bath Street I can't remember really and I don't know if I dropped them off right at the office in question or whether they walked a bit away from the pub but I just drove off in my cab at the time. I can't remember if John Neeson was in custody after this but I know he was going to trial. Whether he got bail or not I cannot say, I gave a statement at that time for his defence case but the case did not proceed and although I went to Court as a witness for him I was not called."
(a) The affidavit and precognition on oath
 The Commission had William Gronan precognosced on oath on 20 February 2002 due to his initial reluctance to co-operate with the Commission. A copy of the affidavit he made on 30 January 1996 and a transcript of the precognition on oath were both before us. The affidavit is in the following terms:
"1. I am William Gronan. I am 49 years of age. I used to reside at 10 Killoch Avenue, Paisley but now reside at care of Crichton, 14 Belltrees Crescent, Paisley where I live with Janet Crichton.
2. I am not related to Ronnie Neeson. At the material time I did not know him but I had heard of his brother John Neeson. I have a friend Alexander Hardie and at the material time Alexander Hardie and I lived in the same close in Carnarveron Street, St. George's Cross, Glasgow.
3. On the day in question, which was a short time before the Trial of Ronald Neeson I was working on a Hostel doing some repair work. I went to Hardie's house and asked him to come out with me for a drink. We went to a bar known as Cameron's Bar, now known as the Carnarveron Bar in St. George's Road, Glasgow. I had a couple of pints when John Elliot, whose nickname is 'The Gimp' came in. I had met him in the past. He was on his own at that time. There was some general conversation but he did appear agitated. He was back and forward to the phone. I asked him what was wrong. He said he had fitted Ronnie Neeson up and that he had done a deal with the heavy mob. These were his words. I knew that he was referring to the Serious Crime Squad. He said that he had been in dead trouble. He said he was looking at double figures. He didn't however specify what the trouble was. He said he was waiting on John Neeson. I wanted to go away at that stage but Hardie said he knew John Neeson and just to wait, so we stayed on. He, John Elliot, was still back and forward to the telephone. About 45 minutes later I was aware that John Neeson came into the Public House. I was aware then that John Neeson and John Elliot were intending to go to the offices of Mr. Beltrami, Solicitor. Elliot said he would be back later. He said he was going to sell a car, he would have money and buy us all a drink. He and John Neeson then left. A few days later I went to London. This was a previous arrangement that I had made and had nothing to do with what I had heard. I worked in London and occasionally came back and forth to Paisley. I returned to live in Paisley about 1992 or 1993. I have kept in touch with Alex Hardie through the years.
4. I have previous convictions the last being in the early 1970s. I have had 4 years imprisonment with assault and also at other times I have had 3 to 18 months sentences."
 In the course of his precognition on oath, Mr. Gronan gave an account of meeting John Elliot at Cameron's Bar. When asked how he came to be at that bar, he said he was working on the renovation of a building in the same street and Alex Hardie, who was a friend, approached him and told him that John Elliot and John Neeson were in Cameron's bar and suggested that they go and see them. Both John Elliot and John Neeson were already there when he and Alexander Hardie arrived. He went on to state that he subsequently received threats in connection with what he had been told by John Elliot. The first of these threats came about three to four weeks after the conversation when three or four men came to his door. One of them hit him with a machete on the fingers of his right hand, and he was told to "stay out of it". The machete went through all his fingers. He took the threat seriously and moved away from the area. When asked why he had not mentioned the machete attack in his affidavit, he indicated he did not want the police to hear about it.
(b) The evidence
 In his evidence before us, Mr. Gronan, questioned by the appellant, spoke of a meeting with John Elliot in Cameron's Bar. He was not able to say when the meeting took place other than it was "a lot of years ago". He said John Elliot told him he had done a wrong thing and had put the appellant and his own brother (William Elliot) in for a murder. According to the witness, no prompting was required and John Elliot just came out with the information. In response to a question from the court, the witness said that on the day in question, he was working on a building when Alex Hardie spoke to him and asked him to come to Cameron's Bar because "the Gimp" (John Elliot) wanted to see him and he was "a wee bit wary" of meeting him alone. When they arrived at Cameron's Bar, John Elliot was already there, and he was alone. The witness described John Elliot as being "kind of agitated". He indicated that he wanted to speak to Alex Hardie alone but the latter refused and said that he should speak in front of Willie (the witness). It was then that he said he (Elliot) had done a rotten thing and had stuck his brother and Ronnie Neeson in for the murder. He also said that he was waiting for John Neeson, the appellant's brother, to come and take him to the office of Mr. Beltrami, solicitor, to confess what he had done. The three of them were sitting drinking together and John Elliot told them that he had been in a bar in Glasgow when he was arrested by police officers who had found a gun in his car which was parked outside. According to the witness, Elliot said that he had stuck Ronnie and his brother in for the murder case to get himself out of the firearms charge.
 Cross-examined by the Advocate depute, Mr. Gronan accepted that the first occasion on which he told anyone in authority about the conversation with John Elliot was when he went to see the solicitor, Mr. Gibson, and gave the affidavit dated 30 January 1996. His explanation for the delay was that he left town not long after the incident. There was a lot of talk about the trial and he heard threats, so he decided to go away. He went to London and was there on and off over a period of ten years. It was the next time he was back that he heard that the appellant and William Elliot were serving life sentences for murder.
 The witness's attention was directed to passages in his affidavit and in his precognition on oath which were in conflict with his evidence. His response was that his recollection of the incident now was exactly as he had described it in his evidence. In particular, he asserted that he was certain that John Elliot was already in Cameron's Bar before he and Alex Hardie arrived since he remembers noticing him drive into the street, park his car and walk towards the premises while he was still working. The witness readily agreed with the suggestion put to him that his recollection, even at the time of making his affidavit in 1996, was affected by the passage of time.
 While the court in its opinion of 17 May 2005 indicated that the Crown too would be entitled to lead evidence on the matter, if so advised, no such evidence was led. We were informed by the Advocate depute that John Neeson was now deceased and that John Elliot had disappeared and could not be traced.
 We are not persuaded that the additional evidence in this case is of such a kind and quality that it is capable of being regarded as credible and reliable by a reasonable jury and likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial (cf. Al Mehgrahi v H M Advocate 2002 S.C.C.R. 509 at para. 219).
 William Gronan gave his evidence in a straightforward manner and we drew no adverse inference as to his credibility from his demeanour as a witness. There were, however, certain problems presented by his evidence. In the first place, there is the very long delay in speaking to anyone in authority about the incident. When cross examined about this, the witness expanded on his explanation that he left town soon afterwards. He said that he disappeared completely and cut himself off from his former life for a matter of years. We observe that this is not entirely consistent with his evidence that it was on one of the times that he came back to the area that he heard from Alex Hardie of the life sentences imposed on the appellant and William Elliot. What is clear, in any event, is that he knew of the outcome of the trial. Nevertheless, it was only when he heard that John Neeson's solicitor was looking for him that he went to see him and made his affidavit. More than 13 years had by then elapsed. That delay in the face of his knowledge that the appellant was serving a life sentence is of obvious significance in relation to a consideration of the general credibility of his evidence.
 It is also clear, on his own admission, that the witness's recollection of the incident was affected by the passage of time, even by the date of the affidavit. In this connection, we note that in his evidence he said he was approached on the day in question by Alex Hardie who asked him to accompany him to Cameron's Bar for the specific purpose of being present when he met John Elliot, and that John Elliot was already there when they arrived. On the other hand, in his affidavit, the witness says that he went to Hardie's house and asked him to come out for a drink with him, and that it was only after they had had a couple of pints that John Elliot arrived. A different version occurs in the witness's precognition on oath taken in February 2002. There, he says that Hardie approached him at work and told him that both John Elliot and John Neeson were in Cameron's Bar, and that both men were present when he and Hardie arrived there. We also note that, prior to giving evidence before us, the witness had never previously mentioned that he was asked by Alex Hardie to go with him for the specific purpose of being present when he spoke to John Elliot.
 These are differences of detail. Of greater significance, in our view, is the fact that when questioned about his delay in coming forward, the witness stated that although people told him to watch out and stay away from John Elliot, no personal threats were made to him. When his attention was drawn to the passage in his precognition on oath describing an incident involving a machete, the witness said that his hands were all damaged in that attack. His failure to mention it in evidence was because he "just forgot". That explanation, given the nature of the alleged incident, and viewed in the context of his other efforts, as noted above, to explain his delay, was less than convincing.
 In assessing the likely significance of William Gronan's evidence, we note that his description of what John Elliot said was that he stuck the appellant and his brother, William Elliot, in for the murder charge. The witness did not make any clear assertion in evidence, or in his affidavit or precognition on oath, that what Elliot regretted was the untruth of the statement he made, as distinct from the fact of having made it. The language used by him throughout was capable of bearing the interpretation that what John Elliot regretted was not that he told lies to the police but rather that he "grassed" on the appellant and his brother, that is to say, provided (true) information that led to their prosecution. Even when questioned by the court about this, there was no spontaneous reference to the fabrication of evidence. It was only when he was actually presented with the two options that the witness stated that what John Elliot regretted was blaming the two men for a murder they had not committed.
 Having considered the evidence given by William Gronan, we have come to the clear conclusion that the overall impression created by it was that it was not capable of being regarded as credible and reliable, nor was it of such consistency and cogency as to lead to the conclusion that in its absence a miscarriage of justice must have occurred.
 The death of Alexander Hardie and James Coyle deprived the court of the opportunity of discovering whether these witnesses adhered to the terms of their affidavits. It is, of course, difficult to assess the likely import of their evidence from the bald terms of the affidavits available to us. We note, however, that the contents of the two affidavits do, in general terms, cohere with each other and with the evidence we heard from William Gronan. In particular, Alexander Hardie speaks of John Neeson and John Elliot leaving Cameron's Bar together in a taxi for the specific purpose of going to Mr. Beltrami's office so that John Elliott can retract his statement. James Coyle, the taxi driver, speaks of taking the two men to the centre of Glasgow, having been told that that was their purpose. We note that there was, however, no evidence that John Elliot ever did see a solicitor to retract his statement. Moreover, the Commission records that John Elliot was cross-examined extensively at the trial by both counsel for the applicant and counsel for his co-accused as to the credibility of his evidence. It was put to him that he had fabricated the evidence against his brother and the applicant in return for a guarantee of immunity from prosecution in connection with the alleged firearms and drug dealing offences. He denied this and insisted in the truth of his evidence implicating the appellant. We also note in this connection that the Commission records that the appellant advised that his brother claimed to have been informed by John Elliot, some time after the murder but before the trial, that he was willing to retract the statement that he had provided to the police; and that the appellant claims that he brought this matter to the attention of his legal advisors prior to his trial and instructed that his brother be called as a witness. The Commission also records that both the appellant's solicitor and his counsel informed the Commission that they had no recollection of any evidence being available at the time of the trial which could have been led to support the proposition that John Elliot had fabricated the evidence against the appellant.
 The affidavit of Alexander Hardie is dated 17 February 1993. It does not contain any hint of an explanation for the delay in coming forward; and there is no suggestion that the witness was away from the Glasgow in the period following the events he describes. James Coyle speaks of John Elliot having said that he had caused the Neesons a lot of grief and had even put his brother in. His language, like that of William Gronan, is inspecific as to the precise import of Elliot's admission. In the absence of an opportunity to explore such issues with the witnesses we do not consider that we can accept the contents of their affidavits, untested and at face value, as capable of being regarded as credible and reliable evidence of such significance as to meet the required test.
 For the foregoing reasons this appeal is refused.