Lord Justice Clerk

Lady Dorrian

Lord Bracadale

[2013] HCJAC 89



delivered by LORD CARLOWAY,



the appeal by







Appellant: Bain AD; the Crown Agent

Respondent: J Carroll, Solicitor Advocate, McLaughlin; Gerald Grady & Co, Glasgow

15 July 2013

[1] On 10 July 2013, after some eight weeks of evidence at the High Court in Glasgow, the trial judge sustained a "no case to answer" submission made under section 97 of the Criminal Procedure (Scotland) Act 1995 and acquitted the respondent of murder. The Crown have appealed that decision under section 107A of the 1995 Act.

[2] According to certain testimony, notably that of a neighbour, the deceased was shot dead on Wednesday 7 March 2012, when he opened the side door of his house at 45 Westmuir Place, Rutherglen. This address is between Main Street and Prostpecthill Road. The neighbour spoke, amongst other things, to sounds of tapping being heard some fifteen minutes or so before a loud bang. Although, as the respondent pointed out, there were other loud bangs heard at later times and the neighbour had given different timings during the course of his evidence, the jury would be entitled to find that the fatal shot was fired at or about 8.00am.

[3] The background is that the respondent and the deceased knew each other socially. The respondent had been to the address of the deceased before. The respondent himself lived at Cumming Drive, which is just off Prostpecthill Road at Hampden Park, something in the region of a mile away from the locus. On 19 February 2012, there had been a fight between the respondent and another person at the Burnhill Bar, Rutherglen. During this the respondent received significant injuries. This, not surprisingly, had annoyed him. According to, amongst others, the respondent's mother, he had said in text messages that he was going to "get the guy" who had done it. She described the respondent's behaviour as "really bizarre". There is some dispute about when exactly she had communicated with her son about this, but there is evidence of many texts being exchanged in the early hours of the morning of 7 March, between 2.10 and 7.18am, which would entitle the jury to hold that it was that morning, and not earlier as the witness maintained, that the threat to "get the guy" was made.

[4] At about 7.48am, the respondent is recorded as contacting an ex-partner and telling her that he thought that the deceased had set him up for the fight. He was, according to this witness, going on and on about it; "ranting on" as the witness put it. There is also evidence about calls made to others in the early hours of the morning in which the respondent is described as angry and bawling about his injuries. Generally, the respondent is recorded as using his phone some 165 times between midnight and the time alleged by the Crown for the murder that morning.

[5] Evidence about the places (the mobile phone mast sites) where the respondent's phone signal was received demonstrated that he may have been in the vicinity of his own flat, or visiting a shop on Cathcart Road, prior to 7.18am. In this regard, his signal was picked up at sites at Lesser Hampden and Battlefield Court. Of significance for the Crown case is that, at about 7.24am, the site receiving the signal from the respondent's phone switches to that in Jessie Street, which is located eastwards of Lesser Hampden and Battlefield Court and nearer to the locus in Rutherglen. Although the sites drift onto Muirhouse Heights and back to Battlefield Court, at 7.49am or thereby it is a site at Rutherglen, in the very vicinity of the locus, which begins to pick up the respondent's phone signal. There are SMS messages recorded as going through that site at 7.49am and 7.15am, then again at 8.02am and texts at 8.05am. There were no outgoing or bilateral communications for about fifteen minutes between 7.48am and 8.05am and then again after that until 8.54am. Thereafter, there is movement back westwards from Rutherglen at 9.21am, which is the last communication made from the phone. Thereafter it was not used at all by the respondent and ultimately replaced on 17 March.

[6] Evidence from friends and relations, to whom the respondent had spoken to that morning, was to the effect that the respondent had asked them either to get rid of their phones or to delete text messages from them. The Crown seek to persuade the jury to draw an inference that information available in the form of texts or otherwise was thus being deliberately concealed.

[7] In sustaining the submission of no case to answer, the trial judge correctly noted that the test was whether the evidence, taken at its highest, was capable of supporting the inference of guilt beyond reasonable doubt (Little v HM Advocate 1983 SCCR 56). The trial judge was conscious of the fact that, in terms of section 97, he had to be satisfied that there was insufficient evidence from which such an inference could be drawn. Nevertheless, this court disagrees with his assessment of the potential effect of the evidence, if accepted. If it is taken at its highest, whatever criticisms of its quality may be available, there is proof first of motive in the form of the respondent seeking to "get" the guy who had set up the fight and whom he identified as the deceased. From the mobile phone information, there was proof of opportunity with movement towards, and presence in, Rutherglen at the relevant time. Evidence then of motive and opportunity can be combined with that relating to the disposal of the phones which can be regarded by the jury as an indicator of guilty knowledge. That combination is sufficient in law to enable the jury to conclude beyond reasonable doubt that the respondent committed this crime. On that basis the court will allow this appeal, quash the acquittal and direct that the case proceed on the murder charge.

[8] The court has noted the submission from the respondent, under reference to Rushiti v Austria (2001) 33 EHRR 56, Scottish Ministers v Doig 2009 SC 474, Dudgeon v HM Advocate 1988 SCCR 147 and Allen v United Kingdom, ECtHR, 12 July 2013 (no 25424109), that it would not be legitimate for the Crown to rely upon evidence in relation to the disposal of the mobile phones. This was on the basis that the respondent had originally been charged with an offence relative to the disposal of these phones (the former charge (5)), but that that charge had been withdrawn by the Crown and the court had accordingly acquitted him of it.

[9] The practice of the court is that generally the Crown cannot lead evidence of a crime not charged. If a particular passage of evidence is indicative of the commission of a crime in Scotland, fair notice dictates that the crime is libelled in the indictment. If it is not, an objection to the evidence may be sustained. In due course, an accused may be acquitted of the particular charge either because of lack of evidence or because the charge was libelled only for these evidential purposes and the Crown elect not to proceed with it for reasons of practical utility. However, evidence available to prove one charge may be relevant also to another charge on an indictment. The evidence remains available to prove the remaining charges even if there has been an acquittal on the other, possibly "evidential", one. That much is commonplace and it applies, in particular, to the evidence of the disposal of telephones or text messages in this case. The use of the evidence in this way does not contravene the principle that, once someone is acquitted of a crime, the Crown should not thereafter suggest that he is nevertheless guilty of that crime. All that the Crown seek to do is use evidence to prove a charge of which they have consistently maintained the respondent is guilty and where that guilt remains to be judicially determined.

[10] The appeal is therefore allowed, the acquittal of the murder charge quashed and the trial should now proceed on that charge.