APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
 HCJAC 29
Appeal No: XC638/09
OPINION OF THE COURT
delivered by LORD BRACADALE
APPEAL AGAINST CONVICTION
On reference from Scottish Criminal Cases Review Commission
GARY EDWARD POLLAND
HER MAJESTY'S ADVOCATE
For the appellant: J. Scott, Solicitor Advocate et F. McDonald; Solicitor Advocate; Capital Defence; Edinburgh
For the Crown: MacKay, AD; Crown Agent
9 March 2010
 On 22 November 2006 after trial at the High Court at Glasgow the appellant was convicted of two charges in the following terms:
"(1) on 30 October 2004 at Tollcross Road, Glasgow, whilst acting with another or others, you GARY POLLAND, and JAMES ADAM QUEEN did form part of a disorderly crowd, shout, swear and did assault George Fleming, c/o Strathclyde Police, Shettleston, Glasgow and did strike him on the head with a pickaxe handle or similar instrument, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life;
(2) on 30 October 2004 at Tollcross Road, Glasgow, whilst acting with another or others, you GARY POLLAND and JAMES ADAM QUEEN did form part of a disorderly crowd, shout, swear and did assault Edward McDermott, c/o Strathclyde Police, Shettleston, Glasgow and did strike him on the head with a pickaxe handle or similar instrument, all to his severe injury."
The co-accused James Queen was also convicted of both charges. Two other co‑accused were acquitted in the course of the trial. On 13 December 2006 the appellant was sentenced to an extended sentence of 8 years detention comprising a custodial term of 6 years and an extension period of 2 years. On charge 2 he was sentenced to 18 months detention to run concurrently. Similar sentences were imposed on the co-accused.
History of the appeal
 The appellant appealed against his conviction on charge 1 on different grounds from those raised in the reference. In June 2007 application for leave to appeal was refused at both first and second sifts.
 The appellant applied to the Scottish Criminal Cases Review Commission who made a reference to the court on 14 October 2008. On 6 January 2009 a Note of Appeal and a Devolution Minute were lodged with the court. The reference and the subsequent Note of Appeal raised issues of disclosure and defective representation.
The circumstances of the assaults
 The circumstances, as disclosed in the evidence, are set out in the report by the trial judge as follows. On 30 October 2004 a Halloween party was held at the Tavern Bar in Tollcross Road, Glasgow. Many of the people attending the party were in fancy dress. George Fleming, the complainer in charge 1, was dressed as Uncle Fester, a character in the television series the Addams Family, and Edward McDermott, the complainer in charge 2, was dressed as Pugsley, a character from the same programme. Sometime after 11 pm a boy came into the bar and reported that something was happening outside. Mr McDermott went out and saw a number of youths running about, shouting at anyone who came out of the bar; they appeared to be looking for a fight. Tollcross Road runs east and west. Canmore Street forms a T‑junction with the south side of Tollcross Road some distance east of the Tavern Bar. Between the Tavern Bar and the junction there is a bus garage and outside is a bus stop. The youths observed by Mr McDermott were shouting at women at the bus stop. He told them to leave the women alone before chasing them away. Mr McDermott stopped before the junction with Canmore Road and saw Mr Fleming coming along the road. He went towards Mr Fleming and heard shouting from Canmore Street. Mr McDermott and Mr Fleming went to see what the shouting was about. Somebody shouted "Run". Mr McDermott believed that the call was directed at himself and Mr Fleming, who was nearby. Mr McDermott ran into Tollcross Road in the direction of the Tavern with someone chasing him. Meanwhile Mr Fleming was being chased by somebody else on the pavement. The person chasing Mr McDermott was carrying something which could have been about 3 feet long. Mr McDermott was struck on the head on the left hand side at the back. As a result he fell in the middle of the road. Mr McDermott sustained a head injury which required stitching. Mr Fleming was also attacked and sustained much more serious injuries including fractures to his upper and lower jaw, his left eye socket, his nose and his cheek bone. He required to have plates inserted in his face and, despite two operations, he was left permanently blind in his left eye and with a hearing problem in his left ear. At the time of the trial his face was still numb and his speech was affected. So far as the events of the night were concerned he recalled having left the Tavern Bar to buy cigarettes. He heard shouting and decided to go back. The next thing he recalled was wakening up in hospital.
 The Crown case against the appellant was that he had struck Mr McDermott on the head with an object and that he was guilty art and part of the assault on Mr Fleming.
Identification of the appellant
 For identification of the appellant the Crown relied on the approach in Muldoon v Herron 1970 JC 30. DC Diane Callaghan and DC Douglas Wilson were on patrol nearby in connection with another matter. They heard screaming and shouting and drove up Canmore Street towards Tollcross Road. A group of six or seven males ran from Tollcross Road down Canmore Street towards the car. Some of them were carrying weapons. Three of them were together and two of this group of three were carrying weapons. They were on the east footpath. The rest of the youths were scattered. One of the group of three was the appellant. The others were one of the former co-accused, John Dearie, and a child called Daniel Reilly. Although the appellant did not have a weapon, Mr Dearie was armed with a length of wood and Daniel Reilly with a golf club. Mr Dearie was shouting "Wee Men", apparently a reference to a gang called "Tollcross Wee Men". The appellant, Mr Dearie and Daniel Reilly were arrested and placed in the police vehicle. The vehicle was then driven towards the corner of Canmore Street and Tollcross Road where the injured Mr Fleming and Mr McDermott were found.
 When he was arrested the appellant was wearing an orange Gap top which was produced as Crown label No 8. Later, in the course of an interview, the appellant stated that he had been wearing Crown label No 8 all night and that none of his friends had been wearing anything similar.
 Mr McDermott saw the appellant in the police vehicle at the locus and identified him to the police as the person who had assaulted him. He did so specifically under reference to the orange Gap top which the appellant was wearing at the time. Mr McDermott did not identify the appellant in court but identified label No 8 as similar to that worn by his assailant.
 Paul Reilly described seeing Mr McDermott and Mr Fleming being chased from Canmore Street into Tollcross Road. The man chasing Mr McDermott was holding a baseball bat with which he struck Mr McDermott over the head causing him to fall to the ground. He also identified the appellant to the police at the locus as the person responsible and identified him specifically in relation to the orange Gap top which he was wearing. He, too, identified Crown label No 8 as similar to that worn by the assailant.
 In the course of the trial cctv footage covering part of the events of the night was played. We also had the benefit of viewing it in the course of the hearing of the appeal. Although the footage did not show the assaults on Mr McDermott and Mr Fleming, it did show incidents taking place before the assaults and the aftermath of persons attending to the injured Mr Fleming. The appellant is seen briefly at the beginning of the sequence. At one point in the footage Mr McDermott and a former co‑accused Queen were engaged in a stand up fight in the middle of Tollcross Road. A number of other persons got involved. A male wearing a hooded top was standing nearby watching what was happening, armed with a golf club. Evidence as to what could be seen in the cctv footage was given at the trial by DC Callaghan. In the course of her evidence she was not asked to identify the male with the golf club. In the course of preparing the case Detective Constable Callaghan had compiled a synopsis of the events which could be seen on the cctv footage. In the synopsis she had identified the male in the hooded top carrying the golf club as Daniel Reilly.
Grounds of appeal
 The first ground of appeal related to the failure by the Crown to disclose certain material relating to Daniel Reilly. These included the following; a police statement of Daniel Reilly dated 23 August 2006; aspects of a Crown precognition of Edward McDermott dated 7 April 2006; aspects of a Crown precognition of Paul Reilly dated 7 April 2006; and the synopsis of the cctv footage prepared by DC Diane Callaghan. The advocate depute accepted that these items met the test for disclosure and should have been disclosed to the defence.
 Daniel Reilly was included in the list of witnesses for the co-accused and, in accordance with normal practice, the police obtained a statement from him. In the course of the statement he admitted that he had been carrying a golf club.
 The synopsis of the cctv footage prepared by DC Diane Callaghan was included in the report to the procurator fiscal but was not included as a production and was not disclosed to the defence.
 When Mr McDermott was shown the cctv footage in the course of his precognition by the Procurator Fiscal he said
"I have noticed from the video a guy standing by watching with a golf club who was wearing a tracksuit top over his head and dark trousers. I think this might have been the boy that attacked me from behind."
When Paul Reilly was shown the cctv footage at precognition he said
"You can see Queen on the video struggling with Eddie McDermott and Christie Callaghan. Queen has white shoes on. Eddie hadn't been hurt by the guy with the hooded top on at this point but I think that's the guy who's standing watching the struggle in the middle of the road. He was holding some kind of stick or golf club. I think it was him who hit Eddie."
(ii) defective representation
 The second ground of appeal raised an issue of defective representation. This ground was directed first at the alleged failure of trial counsel, even in the absence of access to the undisclosed material, properly to appreciate the significance of the cctv footage. It was averred that she had failed to appreciate that the man with the golf club was Daniel Reilly and from the record of her interview by the Scottish Criminal Case Review Commission it appeared that she thought that the man with the golf club was the appellant. Secondly, in a statement of DC Diane Callaghan, which was disclosed, she recorded that Paul Reilly had said to her that he had seen Mr McDermott being hit over the head with a golf club. This had not been put to Paul Reilly.
 Mr Scott, solicitor advocate, who appeared on behalf of the appellant, submitted that the cumulative effect of the non‑disclosure and the defective representation gave rise to a miscarriage of justice. He submitted that the failure to disclose the material relating to Daniel Reilly created a real risk of prejudice to the defence. The information contained in the undisclosed documents would have materially weakened the Crown case and strengthened the defence case. The identification of the appellant as the assailant came from the two witnesses Edward McDermott and Paul Reilly. The effect of the non-disclosure of the material in relation to Daniel Reilly deprived the appellant of an opportunity to challenge the reliability of each of these witnesses. Had the appellant's legal representatives been in possession of the information in relation to Daniel Reilly, counsel would have been able to put to them that they had identified the man with the golf club as the man who assaulted Mr McDermott. This would have provided material to undermine their identification of the appellant.
 Mr Scott submitted that the failure on the part of trial counsel not to have had a better understanding of the cctv footage created on her part a lack of understanding which was so absurd that it could be said to fly in the face of reason.
 Having accepted that the material identified in the ground of appeal ought to have been disclosed, the advocate depute submitted that there had been no miscarriage of justice. The identifications to the police, which were made very soon after the witnesses had observed the events, were made under specific reference to the Gap top. The extent of the use which the defence could make of the contents of a Crown precognition at trial would be very limited and, in the absence of a notice of incrimination, no use could have been made of material pointing to Daniel Reilly being the perpetrator.
 In relation to the question of defective representation the advocate depute submitted that it was not clear that trial counsel had been under a misapprehension as to the contents of the cctv footage and that, in any event, in the light of her instructions, there was no use which she could have made of evidence tending to incriminate Daniel Reilly. As to the statement of DC Callaghan, the advocate depute pointed out that in the next sentence she recorded that Paul Reilly had clearly identified the appellant as the assailant under reference to his orange Gap top.
 As the advocate depute conceded that the material in relation to Daniel Reilly should have been disclosed, we can go on to consider the impact which its absence would have been likely to have had in the trial.
 It is important to bear in mind the nature of the material of which the appellant was deprived. It comprised evidence that the male in the street carrying the golf club and watching the incident involving Mr McDermott and Mr Queen, was Daniel Reilly. In addition, there was information that when, in the course of precognition by the procurator fiscal, each of the witnesses who identified the appellant as the assailant of Mr McDermott was shown the cctv footage, he claimed that the male with the golf club was, or might have been, the assailant. In our opinion, formidable difficulties lay in the way of any meaningful use by the defence of this material. First, the impact of any evidence that at an earlier stage Mr McDermott and Paul Reilly had each identified the man who turned out to be Daniel Reilly has to be considered in the light of the strength of their identification of the appellant under reference to his clothing. That was compelling evidence. The witnesses saw him in police custody very shortly after the assaults; each identified him by the distinctive orange Gap top that he was wearing. The appellant himself admitted that he had been wearing the top during the events and that none of his friends had been wearing a similar garment.
 Furthermore, there would have been significant difficulties in exploring such evidence. While each of the witnesses could be asked if he had identified another man, the contents of a Crown precognition could not be put to the witness. An even more formidable obstacle that lay in the way of exploring in evidence whether Daniel Reilly might have been the assailant was that there was no notice of incrimination of him lodged on behalf of the appellant. In relation to that matter, as well as in relation to the issue of defective representation, it is necessary to have regard to the instructions given by the appellant to counsel.
 Both the solicitor for the appellant and trial counsel provided this court with reports. In his response the solicitor states "the appellant was adamant throughout that he did not wish to incriminate anyone in connection with the incident." Later, he states the following:
"No special defence or incrimination was lodged. The appellant gave specific instructions that he did not wish to incriminate anyone. It was explained to the appellant at a meeting with him and counsel on 23 August 2006 that failure to incriminate may be prejudicial to him."
Trial counsel was not the counsel originally instructed but was instructed about a week prior to the trial. In her report to this court she states the following:
"The counsel previously instructed and I discussed the case before he passed on the papers in the case to me. I was advised by him that the appellant had given specific instructions that he was not guilty, but he did not wish to incriminate any other person, whether his co-accused or otherwise and that he accepted that he had been there or thereabouts at the locus with his co-accused, but had done nothing."
She herself consulted with the appellant prior to the trial and clarified that he did not wish to incriminate any person or persons. She indicated that he was resolute on this matter. He had no defence witnesses and indicated that he did not wish to give evidence at the trial.
 It is clear from these reports that the appellant gave very clear instructions as to the way in which the trial was to be conducted. They left trial counsel with very little room for manoeuvre. It would have been impossible for trial counsel, in the light of these instructions, to have explored in evidence the possibility of Daniel Reilly being Mr McDermott's assailant. It would have been contrary to her instructions and it is likely that there would have been an immediate objection from the Crown.
 In McInnes v HM Advocate 2008 SCCR 869 at 881 to 882, in deciding whether there had been a miscarriage of justice as a result of a failure of disclosure, and determining a devolution issue, the test applied by the appeal court was whether the absence of the undisclosed material gave rise to a real risk of prejudice to the defence. Leave to appeal against the determination of the devolution issue to the Judicial Committee of the Privy Council was granted. The question raised was whether the appeal court had applied the correct test. On 1 October 2009 the devolution jurisdiction of the Judicial Committee was transferred to the Supreme Court by section 40 of and schedule 9 to the Constitutional Reform Act 2005. On 10 February 2010, while the present case was at avizandum, the Supreme Court gave its judgment (McInnes v HM Advocate  UKSC 7). Lord Hope of Craighead developed the test and defined it in the following terms, at para 20:
"The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate [2006 SCCR 9], para 35, as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act 1995. The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict."
Applying that test in the present case, taking all the circumstances of the trial into account, and having particular regard to the considerations examined above, we are not persuaded that there is a real possibility that the jury would have arrived at a different verdict if the undisclosed material had been available. Its absence did not lead to an unfair trial and there was no miscarriage of justice.
 In relation to the question of defective representation, Mr Scott's complaint was not that trial counsel had failed to advance the intended defence but that her failure properly to understand the contents of the cctv footage amounted to an exercise of professional judgement so absurd as to fly in the face of reason. As a result the court would be entitled to hold that the defence had not properly been conducted. In such circumstances a miscarriage of justice may be said to have occurred (Anderson (JM) v HM Advocate 1996 JC 29; McBrearty v HM Advocate 2004 JC 122).
 In her report to this court trial counsel stated that she viewed the cctv footage more than once and did so in the company of the appellant. On the basis of the information before us we are not persuaded that trial counsel did misunderstand the contents of the cctv footage, but, even if she did, in the light of the clear instructions which she had, and in the absence of a notice of incrimination, exploring whether the male carrying the golf club was Daniel Reilly would have served very little purpose. It is not suggested that the defence, such as it was, was not presented. We are unable to accept the submission of Mr Scott that if there was a failure on the part of trial counsel to have had a better understanding of the cctv footage it could be said to amount to professional conduct which flew in the face of reason. In relation to the reference to a golf club in the remarks made by Paul Reilly to DC Callaghan and recorded by her in her statement, we note that immediately thereafter Paul Reilly identified the appellant as the assailant under reference to his clothing. In these circumstances counsel might legitimately make a tactical decision not to explore what was said by Paul Reilly to the detective constable. In any event, given the limited nature of her instructions, there was little room for pursuing the issue.
 Whether the grounds of appeal are considered separately or cumulatively, we are not persuaded that that an unfair trial resulted or that a miscarriage of justice has occurred. Accordingly, the appeal against conviction is refused.