Lord Justice General

Lord Marnoch

Lady Paton

Appeal No: C485/99





under the provisions of Section 124(3) of the Criminal Procedure (Scotland Act 1995

in causa







Appellant: Prais, Q.C., Livingstone; John Macaulay & Co.

Respondent: MacNeill, A.D.; Crown Agent

20 December 2000

[1]The appellant is Andrew Smith, who was convicted of murder at the High Court at Glasgow on 18 February 1977. As it stood at the time when the jury considered their verdict, the charge on the indictment alleged that he did

"on 5th November 1976 , in the Raploch Bar, 1 Union Street, Larkhall, Strathclyde Region ... assault Richard Hill Cunningham, 109 Fairholm Street, Larkhall, and did repeatedly punch and kick him on the face and head, and [he] did murder him."

The appellant was sentenced to life imprisonment. The Trial Judge, Lord Avonside, indicated, however, that if he behaved himself, the appellant would not be kept in prison very long. The appellant appealed against his conviction but, the day before his appeal was due to be heard, the Legal Aid Board refused legal aid for the appeal. Accordingly, on the morning of the appeal, 15 June 1977, the appellant's agents and counsel withdrew from acting and the appellant, who was only semi-literate, was left to present the appeal himself. The appeal was refused. Eventually, on 30 March 1999 the Secretary of State referred the appellant's case to this court in terms of Section 124(3) of the Criminal Procedure (Scotland) Act 1995.

[2]Simply by way of background, we record that the appellant was released on licence in August 1983 but was recalled to custody in April 1985, after being convicted of five charges of breach of the peace and of a number of driving offences, all committed when he was under the influence of alcohol. He was released on licence again in August 1985 but was recalled for a second time on 6 November 1986 because he had failed to be of good behaviour and keep the peace. Apparently, he had been charged with a contravention of Section 47 of the Civic Government (Scotland) Act 1982 and with a breach of the peace, the circumstances being that he had been found in a drunken condition, urinating against the wall of a shop under a street light. After being cautioned and charged at the scene of the offence, and being informed that he was free to go, the appellant began shouting, swearing and threatening the officers and had to be forcibly taken into custody. Having been recalled for this second time, the appellant remained in custody until 5 October 1999 when he was granted interim liberation pending the disposal of the present appeal.

[3]Although we shall have to examine the evidence in a little more detail, at this stage it is enough to say that the charge concerned an incident which occurred in the gentlemen's lavatory in the Raploch public house towards closing time on the evening in question. It is common ground that some kind of fight occurred there between the appellant and the deceased. The Crown case was that at some stage in the fight the deceased was lying on the floor and, while he was in that position, the appellant kicked him on the side of the head. As a result of that kick the appellant suffered a haemorrhage from which he died. The appellant's position, as given by him in a voluntary statement to the police and in his reply to caution and charge, was that the deceased had grabbed him and punched him and that a fight had ensued in which the appellant had punched and kicked the deceased in self-defence. In the course of this fight the appellant had managed to get a good punch at the deceased's face and, as a result, the deceased collapsed, falling straight backwards on to the floor. The appellant did not give evidence but a Crown witness, Miss Jean Bateman, testified that, immediately after leaving the lavatory, the appellant had given her an account which was broadly similar to that contained in his voluntary statement. With obvious hesitation, given the nature of the medical evidence to which we shall refer, the Trial Judge left the issue of self-defence to the jury for their consideration. Their verdict indicates that they found that the Crown had proved that the appellant had not acted in self-defence.

[4]The right of appeal in solemn cases is contained in Section 106 of the 1995 Act. Under subsection (3) a convicted person may bring under review of the High Court any alleged miscarriage of justice, including a miscarriage based on the existence and significance of evidence which was not heard at the original proceedings (paragraph (a)). In this case the admirably clear grounds of appeal prepared by the appellant's solicitors show that he bases his appeal on the existence of expert evidence from eminent forensic pathologists which contradicts the evidence of the Crown pathologists at the appellant's trial. In 1976 the late Professor Arthur Harland and Dr. Alan Watson carried out a postmortem on the deceased on behalf of the Crown and they then reported to the procurator fiscal. In their joint report dated 8 November 1976, they summarised their conclusion by saying that the deceased

"died as the result of a head injury. This was characterised by a fracture of the skull, extradural and subdural haemorrhage and cerebral contusions. The fracture ran almost horizontally, and it is our opinion that it had resulted from an impact on the left side of the head."

The defence instructed a report from Dr. Woodger and his report was in broadly similar terms.

[5]At the time of the trial, both the Advocate Depute and defence counsel in effect proceeded on the basis of the evidence of Professor Harland that his findings and those of Dr. Watson were

"consistent with the victim being knocked to the ground as a result of a blow to the face or head, a blow or blows, thereafter being on the ground and being kicked while on the ground."

Professor Harland also observed that it was the direction of the fracture of the skull, horizontal rather than vertical, that had led him and his colleague, Dr. Watson,

"to conjecture that perhaps he [the deceased] had received a blow of some kind to the side of his head."

Professor Harland agreed with the Trial Judge that the deceased's injuries would

"be consistent with the victim having been in a fight, having been knocked to the ground by his assailant and then, while he was lying on the ground, his assailant kicked him on the temple."

Dr. Watson agreed with Professor Harland in all material respects.

[6]In view of the fact that the appellant admitted fighting with the deceased at the relevant time, the evidence of the two forensic pathologists was central both to the Crown case against the appellant and to the way in which the trial was conducted. In the first place, theirs was the only evidence available to the Crown which indicated that the deceased had died as a result of being kicked on the side of the head. In other words, their evidence was the only basis for the averment in the indictment that the appellant kicked the deceased on the face and head. Furthermore, their evidence was the only basis for the allegation which lay at the heart of the Crown case that the appellant had murdered the deceased, viz. the allegation that the appellant had killed the deceased by kicking him on the head while he was lying on the ground. After all, if the jury concluded that the appellant kicked the deceased on the head when he was lying on the ground, they could readily reach the view that he had acted with that wicked recklessness which meant that the appropriate verdict was murder rather than culpable homicide. Moreover, as is obvious, if the jury accepted the pathologists' evidence that the deceased had been kicked in this way, there was no real prospect of the appellant's special defence of self-defence succeeding. However the incident might have begun, if the deceased was lying defenceless on the ground when the appellant kicked him on the head, the appellant could not have struck the fatal blow in self-defence.

[7]In these circumstances, as is apparent both from the Trial Judge's charge to the jury and from his confidential report to the appeal court, defence counsel conducted the trial on the clear-cut basis that the jury could either convict the appellant of murder or could acquit him. Counsel sought, of course, to persuade them that they should acquit the appellant. While the appellant's voluntary statement and reply to caution and charge gave a basis upon which the jury could in theory have found self-defence established, as we have just noted, that was in reality a somewhat unpromising line in the context of a trial where the substantially uncontested medical evidence was to the effect that the deceased had died as a result of a kick to the head when he was lying on the ground. Presumably for this reason, defence counsel appears to have preferred to concentrate on a different line of defence, to the effect that the deceased had sustained his fatal injuries, not at the locus, but subsequently, while being assisted from the bar or in a fall at home. There was also a suggestion, based on rather weak evidence, that the deceased might subsequently have been kicked on the head by some other, unidentified, person. Their verdict shows that the jury rejected these lines of defence. The Advocate Depute addressed the jury on the basis that they might return a verdict of culpable homicide but, presumably again because of the nature of the pathologists' evidence, counsel for the appellant did not refer to culpable homicide and concentrated instead on urging the jury to acquit the appellant of murder, on the basis of the lines of defence which we have mentioned. Since defence counsel had not referred to culpable homicide, in his charge to the jury the Trial Judge did not give the jury directions on culpable homicide and directed them on murder only. They therefore had to consider their verdict simply on the basis that they could either convict or acquit the appellant of murder. After having retired for only fifteen minutes, the jury returned a verdict finding the appellant guilty of murder.

[8]As we have noted already, the agents acting for the appellant in this appeal have lodged in court reports from a number of distinguished experts in forensic pathology. These reports show beyond doubt that the opinion expressed by Professor Harland and Dr. Watson in 1976 and 1977 on the critical aspect of the case was entirely without foundation and misconceived. In fact the deceased had suffered a classic contre-coup injury which pointed to his having fallen and struck the back of his head on the floor. The horizontal direction of the fracture was consistent with an injury sustained in this way. In other words the deceased's injuries were consistent with his having died as a result of striking his head when he fell - exactly as the appellant had said in his voluntary statement. On the other hand, nothing in the nature of his injuries gave any proper basis for inferring that the deceased had been kicked on the side of the head, far less that he had died as a result of such a kick.

[9]The Crown, having had an opportunity to consider and investigate this new material, now accept that the evidence given by Professor Harland and Dr. Watson at the trial was wrong. We do not need to examine the matter in detail since, at the start of the appeal, the Advocate Depute tendered a Joint Minute signed by himself and by Mr. Prais, Q.C., on behalf of the appellant, which records that they agree that it may be regarded as proved:

"That, contrary to the views expressed by Professor William Arthur Harland and Dr. Allan Albert Watson (Crown witnesses 23 and 24 respectively) at the trial on 17 February 1977, there is no proper or reliable support for the view that the injury which caused the death of the deceased Richard Hill Cunningham was caused by the administration of a kick to the side of the head while the deceased was in a prostrate position. The fracture to the skull suffered by the deceased (which, combined with the associated extra and sub-dural haemorrhages and cerebral contusions, led to his death) was caused by the deceased being knocked over and the back of his head striking the floor."

[10]We must therefore determine this appeal on the basis that the true factual position was that the deceased died as a result of being knocked over and falling and striking the back of his head on the floor of the lavatory. Since, for the purposes of the appeal, the Crown accepted that this was indeed the true factual position, the Advocate Depute indicated at the outset of the hearing of the appeal that the Crown also accepted that there had been a miscarriage of justice and that the verdict of the trial court, finding the appellant guilty of murder, would have to be set aside in terms of Section 118(1)(b) of the 1995 Act. This must indeed be so, since - as we have explained - the evidence of Professor Harland and Dr. Watson was essential to the entire Crown case that the appellant had been guilty of murder. The issue between the parties in the appeal was therefore confined to what the court should do, having set aside the verdict of the trial court. There could, of course, be no question of a fresh prosecution. Mr. Prais submitted that we should quash the conviction, while the Advocate Depute submitted that we should substitute an amended verdict, finding the appellant guilty of culpable homicide. The Advocate Depute accepted that any such finding would have to proceed on the basis that the words "and kick" would be deleted from the libel. In that connexion he also accepted that the reference to kicking in the appellant's voluntary statement was in the context of a "stand-up" fight.

[11]In the course of the hearing it became clear that, in order to resolve the remaining dispute between the parties, we must first decide what test the court should apply in deciding whether to quash the appellant's conviction or to substitute an amended conviction. Strangely enough, there seems to be no modern authority directly in point - presumably because the course to be adopted is usually agreed or is at any rate obvious. In trying to assist us, counsel referred to the decision in Campbell v. H. M. Advocate 1998 J.C. 130 and in particular to the comments of Lord McCluskey and Lord Sutherland on the test to be applied when considering whether additional evidence warranted the conclusion that there had been a miscarriage of justice. We do not, however, find their Lordships' observations of direct help in the very different circumstances of this case where, ex hypothesi, there has been a miscarriage of justice and the court is considering how then to proceed. In addition, Mr. Prais referred us to the typescript opinion of the court delivered by Lord Justice General Emslie in Preece v. H. M. Advocate [1981] Crim. L.R. 783. In that case the court were considering a situation where the principal scientific witness for the Crown at a murder trial had subsequently been shown to be discredited by evidence led at the appeal. The case therefore bore some resemblance to the present case but no question arose of the possible substitution of an alternative verdict. For that reason we did not find the opinion helpful in determining the issue in this case.

[12]As the debate progressed, it seemed to us that, in broad outline, the issue between the parties could be focused in two somewhat crudely formulated questions. Did the appellant have to establish not merely that this court should set aside the trial court's verdict but also that, on the basis of the agreed facts, the jury would have acquitted the appellant? Or, once the verdict had been set aside, was it for the Crown to satisfy the court that on the basis of the evidence, including the new facts, the appellant would have been convicted of culpable homicide?

[13]In the absence of any authority directly in point, we do best by starting from the simple fact that, ex concessu, the verdict of the trial court, finding the appellant guilty of murder, must be set aside. In other words, we are back at the stage before the jury have reached their verdict and when all the relevant material is before them. At that stage, the burden of proving an accused's guilt rests on the Crown. Equally, where the Crown accept that the jury's verdict must be set aside but contend that, on the correct factual basis, the court should substitute a different verdict of guilty, the onus of satisfying the court that it should do so must rest on the Crown. Next, in our system the responsibility for determining guilt or innocence in serious cases rests with a jury and, where the jury reach a verdict which would have been open to a reasonable jury, this court cannot set that verdict aside, even if the members of the court would themselves have reached a different verdict. Similarly, when deciding whether to substitute an amended verdict of guilty, we should consider what a reasonable jury, properly instructed, would have done. Putting these elements together, in the present case we should substitute an amended verdict of guilty of culpable homicide only if we are satisfied that, on the basis of all the relevant evidence, a reasonable jury, properly instructed, would have found the appellant guilty of culpable homicide. Of course, a reasonable jury would have found him guilty of culpable homicide only if they were satisfied of his guilt beyond a reasonable doubt. By the end of the hearing we did not understand the Advocate Depute to suggest that any other approach would be appropriate.

[14]We derive some support for our conclusion from the similarity of that approach to the approach adopted by the appeal court when applying Section 2(1) of the Criminal Appeal (Scotland) Act 1926, which mirrored the equivalent provision in the Criminal Appeal Act 1907, applying in England and Wales at the time. Under Section 2(1) of the Scottish Act the court were to allow the appeal in certain prescribed circumstances and also if they thought that on any ground there had been a miscarriage of justice

"Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."

In McKenzie v. H. M. Advocate 1959 J.C. 32, the trial judge had omitted to direct the jury as to the burden of proof. Lord Justice Clerk Thomson, delivering the opinion of the court, said (1959 J.C. at pp. 37 - 38):

"As the non-direction here was on a fundamental matter the conviction cannot be sustained unless the proviso to section 2(1) of the Criminal Appeal Act can be applied. The test for its application has been variously formulated and we do not attempt to do it again. It is usefully and succinctly stated by Viscount Simon in Stirland [1944] A.C. 315 that 'the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would on the evidence, properly admissible, without doubt convict.' It is a high and exacting test and we have come to be of the view, that it has not been passed in the present case."

Both Lord Justice Clerk Thomson and Viscount Simon were dealing with a test which was differently expressed from that which we have to apply under the 1995 Act. Moreover, Parliament must have chosen to replace that older test with the test in the 1995 Act. So, we must be careful not to import into the interpretation of the current legislation a structure which it does not contain. None the less, as the court found in Murray v. H.M. Advocate 2000 G.W.D. 40-1512, the dictum of Viscount Simon as applied in McKenzie can on occasion provide guidance. Here, we find it of assistance since Section 2(1) specifically envisaged the situation where the court was of the view that the point in the appeal was to be decided in the appellant's favour and dealt with what was to happen if they considered that no substantial miscarriage of justice had actually occurred. In McKenzie the court held that, where the point in the appeal was to be decided in the appellant's favour, they must quash the conviction unless a reasonable jury, after being properly directed, would on the evidence, properly admissible, without doubt convict. In the present case, where the basic point in the appeal has to be decided in the appellant's favour, we have likewise reached the view that the conviction must be quashed unless we are satisfied that, on the basis of all the relevant evidence, a reasonable jury, properly instructed, would have found that the Crown had proved that the appellant was guilty of culpable homicide.

[15]Approaching the matter in that way, at the end of the hearing we had no hesitation in saying that the appellant's conviction must be quashed and we therefore announced our decision then. We now explain our reasoning.

[16]As Mr. Prais submitted at the start of the hearing, in this case the error made by the Crown pathologists was so profound as to affect the conduct of the entire proceedings. In that respect the case is most unusual. As we have already explained, the pathologists' report furnished the only basis upon which the Crown averred in the indictment that the appellant had kicked the deceased on the face and head. Since the supposed kick to the side of the deceased's head while he was on the ground would have been redolent of wicked recklessness, the pathologists' report must equally have been the reason why the Crown charged the appellant with murder. As the Advocate Depute readily admitted, if the Crown had realised that the deceased had died as a result of striking his head in a fall, the appellant would have been indicted for culpable homicide rather than murder. So, we are dealing with a case where the error infected the proceedings from the very moment when the appellant was placed on petition for murder. The conduct of the trial was also shaped by this misconception. Most fundamentally, of course, it was a trial for murder rather than for culpable homicide and the contest was conducted within that framework. But the effects can be seen in various specific aspects of the trial.

[17]For instance, there was one eye-witness, a Mr. Downing, to the fight between the appellant and the deceased in the pub lavatory. He had actually only had a glimpse of the fight and had only seen movements which he interpreted as the appellant punching the deceased twice. In examining him, the Advocate Depute was clearly influenced by his own understanding, based on the medical report, that in the course of the struggle the appellant had at some point kicked the deceased when he was lying on the floor. So, for instance, when the witness said that he heard a thud and then, when prompted, said that it sounded like the deceased being kicked, the Advocate Depute, quite properly, summarised the position by saying

"You cannot say for sure, but you heard a noise you describe as a thud, and you think it may have been a kick; is that a fair way of putting it?"

The witness had not, of course, actually seen the appellant kicking the deceased, but the Advocate Depute went on to ask him whether, from the positions of the deceased and the appellant, he could tell whether the kick would have been on the feet or waist level or head or what. The witness said that he did not know. Clearly, if the Advocate Depute had realised that there was no basis for thinking that the deceased had ever been kicked on the head, he would have conducted this part of his examination of the witness in an entirely different fashion.

[18]Equally, if counsel for the defence had realised that the pathologists' evidence was, scientifically, ill-founded, he would have cross-examined them in a different way. In this respect the report of the defence pathologist, Dr. Woodger, does not appear to have provided additional help for defence counsel. Even as it was, counsel asked Professor Harland about the absence of any broken skin on the deceased's head. Counsel further asked Dr. Watson: "And it [the fatal head injury] is not likely to have arisen in what might be called the more run of the mill type of case, where someone gets punched and is knocked down and falls back and strikes the back of his head?" Dr. Watson replied: "It is not that kind, sir." But, understandably perhaps, counsel did not develop that point in the way in which it could have been developed if he had realised that the Crown pathologists' view about the nature of the blow which had caused the fracture was fundamentally misconceived. Instead, counsel concentrated on trying to get the pathologists to say that the injuries were consistent with one or other of the alternative scenarios being advanced by the defence.

[19]But the apparently damning nature of the medical evidence affected the course of the trial in an even more profound way. The appellant did not give evidence, even though experience suggests that a defence of self-defence is more likely to be successful if the jury hear the accused's own account of events. In preparing for the appeal Mr. Prais had therefore asked the appellant why he did not give evidence. The appellant said that it was because of the medical evidence. Counsel at the trial had advised that, since the appellant's account of punching the deceased and of the deceased falling and hitting his head was irreconcilable with the (apparently) powerful medical evidence that the deceased had died from a kick on the head, he was unlikely to be believed by the jury and therefore, by giving evidence, he would be likely to make matters worse. Of course, these events occurred many years ago and this is doubtless a somewhat simplified account of the advice which the appellant was given. But, even on that assumption, it appears that the medical evidence played at least a material part in the decision not to call the appellant to give evidence. For present purposes it is particularly important to notice that, because of that decision, the evidence led at the trial did not include any direct evidence from the appellant himself about the fight with the deceased and about his claim that he acted in self-defence.

[20]Similarly, as we have explained already, it was the medical evidence which must have led defence counsel to conduct the trial on the basis that there was no room for the jury to return a verdict of culpable homicide. Not only must that have affected the line and scope of his cross-examination, but it also meant that he did not even put the issue of culpable homicide to the jury for their consideration. Equally, as we have seen, the Trial Judge decided not to leave the issue of culpable homicide to the jury.

[21]Lastly, it is apparent that, in other respects also, the Trial Judge's directions to the jury were coloured by his understanding, based on the medical evidence, that the fatal blow was a kick to the side of the deceased's head while he was lying on the ground. So, for instance, while leaving the issue of self-defence to the jury, his Lordship said that in his opinion "it is very doubtful if a case of self-defence has been made out". Having given his directions on the matter, he added "If by any chance you believe that there was here self-defence in the proper sense in which I have outlined it, then you must acquit." The position would have looked significantly different, and the Trial Judge's comments would doubtless also have been different, if the true nature of the deceased's injuries had been understood.

[22]We have highlighted various matters - and there may well be others - which show how the shape and course of the proceedings both before and during the trial were determined by the report and evidence of Professor Harland and Dr. Watson. The same applies with equal force, of course, to what happened after the trial since, with the medical evidence forming the core of the Crown case and the jury obviously having accepted that evidence, there was no basis upon which an appeal could proceed. The Legal Aid authorities, not surprisingly therefore, did not grant legal aid for the appeal. The appellant had to argue it himself and, as would have happened in any event, the appeal was unsuccessful.

[23]The contention of the Advocate Depute was that, even though the original proceedings had been affected in this way, nevertheless we could simply use the appropriate parts of the evidence as it came out at the trial and supplement that evidence with the facts as now agreed between the parties in the Joint Minute. If that were done, he said, the court could reach the view that the Crown evidence taken as a whole was such that a reasonable jury would have rejected the defence of self-defence and would have convicted the appellant. In advancing that submission the Advocate Depute at one point argued that we should consider the new agreed facts but should take the other evidence frozen into the form in which it emerged at the flawed trial. While it will often - and indeed perhaps usually - be appropriate to proceed in this way, we are satisfied that such an approach would be inappropriate, and would indeed be productive of manifest injustice, in this particular case. That approach presupposes that the area of new evidence, or in this case the area of the new agreed factual basis, can simply be regarded as "additional" to the rest of the evidence in the case. Here, however, as we have sought to explain, the evidence of Professor Harland and Dr. Watson did not form a discrete chapter but, rather, it influenced the way in which other witnesses were examined and cross-examined and indeed played a role in counsel's advice that the appellant should not give evidence. Therefore the new facts do not just add to the evidence led at the trial: they actually replace the medical evidence which lay at its heart. That being so, it would in this particular case be artificial to pretend that justice could be done by testing matters simply on the basis of the other parts of the evidence at the original trial with the addition of the new agreed facts.

[24]In these circumstances, when we ask ourselves whether we are satisfied that a reasonable jury properly directed would have convicted the appellant of culpable homicide, we must reply in the negative since we are unable to say what the evidence before that jury would have been, far less how they might have reacted to it. In the end, the Advocate Depute came himself to submit that, in this very special case, the court would have to consider a variety of ways in which such evidence might have emerged. This, however, is an impossible task which invites nothing but pure speculation. For present purposes, the critical matter is the defence of self-defence. As the Advocate Depute stressed, there were passages, particularly in the evidence of Mr. Downing and Miss Bateman, which would suggest that the appellant attacked the deceased and did not simply act in self-defence. But in any trial based on the true medical position the issue of self-defence would have been explored against the wholly different background provided by that evidence. That background would indeed have fitted with certain of the points made by the appellant in his voluntary statement and might therefore have led the reasonable jury to take a favourable view of the parts of the statement where the appellant claimed that he had acted in self-defence. We cannot know. But precisely because we cannot know, it is impossible for us to affirm that a reasonable jury properly directed would in any event have convicted the appellant of culpable homicide. That being our conclusion, we must reject the Crown's contention. It follows that the proper disposal was for the court to quash the appellant's conviction, as we announced at the conclusion of the hearing.