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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Clarke

Lord Hardie

Lord Marnoch

[2011] HCJAC 58

Appeal No: XC577/08

OPINION OF THE COURT

delivered by LORD HARDIE

in the Reference from the Scottish Criminal Cases Review Commission

by

JAMES CARROLL PAUL KINSELLA

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead, M. McKenzie; Drummond Miller, LLP

Respondent: Bowie, Q.C., A.D.; Crown Agent

15 June 2011

Introduction
[1] On 7 June 2005 the appellant appeared at Perth High Court in response to an indictment containing the following charges:

"(1) On 1 April 2004 at Montrose Street Post Office, 33 Montrose Street, Brechin, Angus, you did, with your face masked, assault Frances Bell or Reid, c/o Tayside Police, Forfar, push her against a counter, place your arm around her neck, hold a knife against her neck, repeatedly demand money from Pauline Alison Sinclair or Ray, the Sub-Postmaster there, and did attempt to rob said Pauline Alison Sinclair or Ray of a quantity of money;

and

(2) On 7 April 2004 at the premises known as The Dalhousie Bar, 1 Market Street, Brechin, Angus, you did assault David Alexander Soutar, c/o Tayside Police, Forfar and strike him on the head with a glass to his severe injury and permanent disfigurement."

The appellant pled guilty to charge 2 but maintained his plea of not guilty to charge 1. On 9 June 2005 the jury by majority convicted the appellant of charge 1. He was sentenced to an extended sentence of 9 years 6 months comprising a custodial term of 4 years on charge 1 and a custodial term of 4 years 6 months on charge 2 with an extension period of one year, said periods of imprisonment to run consecutively. The appellant lodged a note of appeal against conviction and sentence in respect of charge 1. Leave to appeal was refused at both the first and second sift.

[2] The appellant applied to the Scottish Criminal Cases Review Commission ("the Commission") seeking a referral of his case to the High Court of Justiciary. On 30 March 2007, having reviewed the appellant's case, the Commission issued a statement of reasons to the appellant in which it indicated that it was not minded to refer his case to the High Court of Justiciary and gave its reasons for coming to that view. In accordance with its practice, the Commission undertook to consider any further submissions before it came to a final decision. Further submissions were made on behalf of the appellant, following which the Commission decided to refer the appellant's case to the High Court of Justiciary.

Grounds of appeal
[3] The grounds of appeal were as follows:

"1. The Crown sought and obtained a dock identification of the appellant by the witness Pauline Ray. The advocate depute relied on that identification before the jury and sought a conviction on the basis of that evidence. It is understood that the witness made an identification of the appellant from a selection of photographs. No identification parade was held despite the appellant's willingness to participate. There is no obvious reason why the parade was not held in accordance with proper practice. The decision not to hold the parade deprived the appellant of the safeguard provided by the controlled conditions of a parade.

The photographs shown to the witness included one of the appellant. However that photograph was taken in 1994. It is to be contrasted with the photograph taken in 2004 in connection with the police investigation then being undertaken. It appears that the officer collating the emulator sheet simply extracted the earlier image from the computer system. Despite the significance of the photographs in relation to the soundness or otherwise of the witness's dock identification they were not disclosed to the defence. In any event the fact remains that the jury were not informed of the necessary facts to allow them to assess the reliability of the witness's evidence.

By inviting the jury to convict in the circumstances described the Lord Advocate was acting incompatibly with the appellant's right to a fair trial under Article 6(1) of the Convention. Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998. In any event the Crown's actions deprived the appellant of his right to a fair trial at common law.

2. It was the duty of the Crown under Article 6(1) to disclose to the defence all information in its possession which would have tended to undermine its case against the appellant or which would have tended to exculpate him. It is plain that there were a number of breaches of the duty of disclosure. The following material was not disclosed to the defence:

(i) The emulator sheet the significance of which has already been alluded to given the Crown's reliance on the evidence of Pauline Ray.

(ii) The witness statements (with limited exceptions).

(iii) The contents of the crime report in so far as these related to the disputed identification.

(iv) The statement of Ruth Robertson.

Whether singly or cumulatively these breaches of duty denied the appellant the opportunity to have his defence properly prepared and presented. Most of the material referred to had a direct bearing on the critical issue of identification. Had that material been available it would have enabled those then representing the appellant to challenge more effectively the evidence on which the Crown relied.

The act of the Lord Advocate, the duty under Article 6(1) not having been complied with, in inviting the jury to convict was an act which was incompatible with the appellant's right to a fair trial guaranteed by Article 6(1). Such act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

3. The Commission has identified failings on the part of the police and those then representing the appellant. Reference is made to paragraphs 94-101 & 123-130 of the statement of reasons.

(i) the police

The most significant relates to the failure of the police properly to investigate the appellant's alibi. As the Commission record no approach was made to the taxi company until 19 April 2005. By that time the records had been destroyed. The delay meant the taxi driver could not be traced. In addition the Commission concludes, for the reasons given, that there are doubts about whether the police attended diligently to the recovery of the CCTV evidence. It was the duty of the police to carry out the necessary investigations into the appellant's alibi and the Crown's duty to ensure that the police carried out those investigations. For the reasons given by the Commission it is improbable that the appellant had fabricated his alibi. That rendered the failures referred to significant in the circumstances of the present case.

(ii) the appellant's representatives
The solicitor then acting for the appellant identified to the Commission the six respects in which he considered that the preparation for trial was inadequate. A consideration of the points set out at paragraph 123 reveals an overlap between those failures and the failures on the part of the police and the Crown. All of the investigations there referred to (with the exception of point 5) should have been attended to by the police under the direction of the Lord Advocate. The material referred to should have been disclosed. The Crown should have instructed that an identification parade was held. Thus the failures are founded on in so far as they remain relevant. If the breaches of the duty on the part of the police and the Crown are established there may be no relevant failure on the part of those then representing the appellant. Esto there was a failure (whether it amounts to defective representation or not) in duty the failures referred to when considered on their own or in tandem with those of the police and the Crown have had the effect of denying the appellant the fair trial to which he was entitled.

4. No reasonable jury, properly directed, could have returned a verdict of guilty. For the reasons given by the Commission it is improbable that the appellant's alibi was a fabrication. That being so no reasonable jury could have failed to entertain a reasonable doubt about the appellant's guilt. In any event standing the inherent weaknesses in the identification evidence given by the witness Pauline Ray no reasonable jury could have placed reliance on it to the necessary standard. Accordingly there has been a miscarriage of justice."

Submissions on behalf of the appellant
[4] The factual background was that in the course of their investigations police officers showed the post mistress, Pauline Ray, an emulator sheet containing twelve images including an image of the appellant. The appellant's image had been taken in 1994 and was an "out of date image". The Crown accepted that the emulator sheet should have been disclosed to the appellant's legal representatives prior to the trial. There was no such disclosure, although prior to the trial the Crown did disclose to his representatives that Mrs Ray had seen photographs from which she had identified the appellant. In addition, in advance of the trial a representative of the appellant had taken a precognition of Mrs Ray in which she disclosed that she had been shown a selection of twelve photographs from which she identified the person who committed the offence. Mr Shead submitted that it was irrelevant whether the appellant's legal advisers were aware of the fact that the witness had looked at an emulator sheet; what was relevant was whether the appellant had been deprived of a fair trial. The failure to disclose the photographs, in particular the fact that the photograph of the appellant was ten years old, deprived the appellant's counsel from considering whether the emulator sheet was itself significant by reason of the age of the photograph and also whether the image of the appellant on the emulator sheet was significantly different from his appearance on the date on which the offence was committed. The Commission had been correct when it observed at paragraph 171 of its statement of reasons that:

"the information contained in the photo-spread might have played a useful part in the defence effort to undermine the reliability of Ms Ray's identification of the applicant. In other words the Commission cannot say that the fact that counsel was unable to raise the age of the photograph as an issue of fairness before the trial judge and/or in his cross examination might not possibly have affected the jury's (majority) verdict."

That approach by the Commission reflected the observations of Lord Rodger of Earlsferry in Holland v HMA 2005 1 SC (PC) 3 at para. [82]. In addition to the non-disclosure of the emulator sheet there had been non-disclosure of Ruth Robertson's statement to the police and of the police crime report. The latter document identified a number of suspects in whom the police had been interested, including Ian Craig. Mrs Ray had told the police that her first impression was that Craig was the assailant. The availability of Ruth Robertson's statement and the crime report would have enabled counsel for the appellant to put before the jury the fact that the police were interested in other suspects prior to the detention of the appellant but thereafter ceased to pursue these other enquiries. Mrs Robertson had been a customer in the shop before the incident and after she left she saw a teenager walking in the street. This evidence would have been of value because it supported the evidence of Mrs Ray concerning her earlier assessment of the age of the assailant as being aged between 20 and 23 whereas the appellant was much older. When considered individually or in combination these failures of disclosure were productive of an unfair trial.

[5] Mr Shead also took issue with the failure of the police to investigate the appellant's alibi. On 9 April 2004 when the appellant was interviewed by the police he provided details of a number of witnesses in support of his alibi. His alibi included being at an address in Dundee, thereafter travelling by taxi to a named petrol filling station where he was collected by Pauline Bruce and driven back to Brechin. The criticism of the police investigation was that police officers failed to recover CCTV tapes from the petrol filling station and records from the taxi firm, both of which might have assisted the appellant's defence. The issue here was one of a lack of equality of arms. The Lord Advocate had prosecuted the case without regard to the balance necessary in the interests of justice. The obligation to investigate the alibi was similar to the statutory obligation on a prosecutor to investigate any defence mentioned by an accused in the course of a judicial examination (Criminal Procedure (Scotland) Act 1995, section 36(10)). The court should take notice of the approach adopted by the police to this investigation. This case was not dissimilar to Johnston & Allison v HMA 2006 SCCR 236 where the police had formed a certain view and had suppressed evidence. In the present case the police had formed a view by April and, having done so, they failed to make investigations as a matter of urgency at the petrol filling station and at the taxi office. Counsel accepted that there was a duty on the accused's solicitors in addition to the duty owed by the police. They were separate but corresponding duties and in the present case both of them may have been breached. In short, the trial had gone off the rails. The reason for that was not relevant. Ultimately the court should be concerned with the question whether the appellant received a fair trial. It was unnecessary to categorise the solicitor's failures as defective representation. It was sufficient if the appellant had been deprived of a fair trial because of the failure to retrieve the evidence from the petrol filling station and the taxi firm, whoever was responsible for that failure. The issue for the court was whether in all the circumstances the appellant had been deprived of a fair trial. It was axiomatic that if he had been so deprived there had been a miscarriage of justice.

[6] In support of the fourth ground of appeal Mr Shead submitted that this was a discrete issue based upon section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. He adopted the Commission's analysis of the relevant evidence in support of the appellant's alibi and invited us to conclude that it was "improbable" that the alibi was a fabrication. The appellant had given the police details of his alibi early on in their investigation. He had been detained on 8 April 2004 at his home in respect of the second charge on the indictment to which he subsequently pled guilty. After his detention he had been taken to Arbroath police office, where he was interviewed in the course of which he provided details of his movements on 1 April 2004. The salient features of his interview in that regard were that on 31 March the appellant had stayed in Brechin. He left there at 9.20am on 1 April and travelled to Forfar with his uncle, James Kelbie, for the latter's court appearance. From Forfar he travelled to Dundee with Brian Borland. In Dundee he checked his house, dropped off a car and went into a post office with Brian Borland where he cashed his giro. He went to Borland's house and saw Borland's girlfriend, Cheryl. He left that house sometime in the afternoon; telephoned for a taxi; was collected from a telephone box in Morgan Street and driven to Forfar Road garage, where he was collected by Pauline Bruce and driven to Brechin. He provided the police officers with the telephone number of the taxi firm. All of the above details, except his visit to his house in Dundee, were corroborated by defence witnesses Brian Borland, Cheryl Jardine and Pauline Bruce. In addition, court records confirmed Kelbie's appearance at Forfar Sheriff Court that day and an entry in the appellant's giro payment book confirmed that he had encashed a giro in Dundee that day at the post office specified by him in his police interview. Borland's four year old son attended nursery school and was in the habit of being collected after 3.00pm, returning home at about 3.20pm. On 1 April the child had returned home before the appellant left the house. The balance of the evidence of the defence witnesses was that the appellant left Borland's house at about 3.45pm. Douglas Inglis, a partner in the taxi firm, had confirmed to Mr Laverty, the appellant's solicitor, that the taxi records disclosed that there was a taxi journey from the telephone box in Morgan Street to Forfar Road. In his police interview on 9 April the appellant recalled a discussion with the taxi driver who had mistaken his name for Costello. The taxi driver had a relative of that name. The evidence of the principal Crown witness, Pauline Ray, was open to criticism on a number of levels. Her description of the height of the robber in her police statement did not coincide with the height of the appellant. Her description at the time of the clothing worn by the robber and the knife used by him did not match the clothing and knife recovered from the appellant's home; her reference in her police statement to Ian Craig and her inability to recall in her evidence whether the robber had a moustache or not, despite her view of the robber's upper lip were all issues undermining the reliability of her identification of the appellant. In all the circumstances the evidence was such that no reasonable jury, properly directed, could have convicted the appellant.

Submissions on behalf of the Crown
[7] In inviting us to refuse the appeal the advocate depute emphasised that in determining the issue of the fairness of the trial it was necessary to assess the whole circumstances of the trial and he submitted that, once that had been done, it was clear that there had been no miscarriage of justice in this case. In her evidence in chief and in cross-examination Mrs Ray had been clear in her identification of the appellant as the culprit. The particular physical feature upon which she relied was the appellant's eyes. She had been able to see the robber throughout as he was standing on the other side of a glass screen. On 1 April 2004 she gave a statement to the police. The following day she had been shown some photographs but did not identify anyone. The same situation prevailed on 3 April. On 8 April police officers went to the appellant's house and discovered a knife/bayonet under the settee. He accepted that it was his. They also recovered his clothes. Thereafter he became a suspect. On 9 April Mrs Ray was shown the emulator sheet containing images of the appellant and eleven other people, albeit the appellant was the youngest. As soon as Mrs Ray saw the sheet she identified the appellant as the person who had attempted to rob her. She was 80% sure. Thereafter she never departed from that identification. Her position was constant prior to the trial, during the trial and afterwards before the Commission. The discrepancies between her police statement and her evidence were explored by the advocate depute at the trial, particularly the most significant areas. These issues were canvassed in the advocate depute's address to the jury, in the defence speech and the judge gave a clear warning in her charge to the jury about the dangers of dock identification. There was other evidence implicating the appellant which supported the identification. In particular the knife or bayonet recovered from underneath his settee was identified by Mrs Ray and Mrs Reid as being similar to the knife used. It was distinctive. Mrs Ray described it as dull before she was shown it. When it was shown to her she said that it was very like what she had seen. When the weapon was shown to Mrs Reid she confirmed that it looked like the knife that had been held at her throat. Both witnesses also identified the trousers recovered from the appellant's home as being similar to the trousers worn by the assailant. The specific criticism, that the emulator sheet clearly showed the appellant when he was younger, was accurate. At the date of the trial the appellant was aged 32 whereas the image shown of him was when he was aged 21. The other eleven images were all of older men aged between 25 and 35. The criticism appeared to be that in her original statement Mrs Ray described the assailant as being aged between 20 and 23 and that she had been influenced in her identification of the appellant by identifying the photograph of a young man in the context of photographs of older men. In other words, she had picked him out because he was younger. That criticism did not bear scrutiny when one had regard to the fact that she identified him because of his eyes. The other criticism by Mr Shead was that the emulator sheet ought to have been disclosed. The advocate depute accepted that it should have been disclosed to the appellant's representatives and that the Crown had failed to do so. Before the court could conclude that the failure to disclose the emulator sheet resulted in an unfair trial, the court had to be satisfied that there must have been a real possibility of a different outcome if there had been disclosure. It is clear from the conduct of the trial that no disadvantage was suffered by the appellant. Counsel for the appellant at the trial was aware that Mrs Ray had been shown photographs and he elected not to ask her about that. If he had been provided with the emulator sheet and had decided to use it in cross-examination of Mrs Ray it would have reinforced her evidence that she identified the appellant shortly after the crime. It may also have drawn the jury's attention to the fact that the appellant had a prior history with the police. Her identification of the appellant from an older photograph would have reinforced her evidence that she was relying upon a particular feature of the appellant, namely his eyes. As regards the failure of the police to hold an identification parade, the advocate depute accepted that such a parade could be of significance in determining the question of the fairness of an identification. However, he rejected any suggestion that it was always necessary to hold such a parade before one could conclude that a dock identification was fair (Hanif v HMA 2009 SCCR 38).

[8] As for the failure to disclose the crime report the advocate depute did not accept that it should have been disclosed. It was standard practice not to disclose such reports but rather to disclose the police report, which was excerpted from the crime report and submitted to the procurator fiscal. That did not mean that other parts of a crime report should not be disclosed if they were relevant for the preparation and conduct of the defence of an accused. In considering this matter the court should have regard to the matters which were said to be of concern and which had not been disclosed. The first was that Mrs Ray had mentioned Ian Craig as being like the person in the post office but he had been traced, identified and excluded from the enquiry. The crime report disclosed that she said that the assailant looked like Ian Craig. When one had regard to her evidence, she confirmed in her evidence that her first impression was that it was Ian Craig but by the time the assailant left the shop she knew that it wasn't Ian Craig. There was nothing in the crime report which contradicted that position. The information, that Mrs Ray thought the assailant looked like Ian Craig, was also contained in her police statement dated 1 April 2004 which had been given to the appellant's representatives prior to the trial. The appellant's counsel had used that information to cross examine Mrs Ray. The second reference in the crime report was a reference to a hitchhiker who had appeared agitated to the motorist who picked him up. There was nothing in the crime report linking the hitchhiker to the crime. He was nowhere near the post office. He had been picked up by a motorist who was not a witness. The motorist had described the hitchhiker as agitated and reported that the hitchhiker had said that he had been in trouble with the police. The final point taken from the crime report was that once the appellant had been identified by Mrs Ray no further investigation about other potential suspects had been undertaken. Even if there was an obligation to disclose the crime report in this case, its non-disclosure had not resulted in an unfair trial as there was no real possibility of any alternative verdict.

[9] As far as the statement of Ruth Robertson was concerned the advocate depute accepted that it should have been disclosed. The fact that she had seen a young person in the vicinity was material information. The advocate depute reiterated that the question was whether there was a real possibility of a different outcome if this statement had been disclosed and he invited us to answer that question in the negative. Although there were similarities as far as clothing was concerned the person was much younger than even the original estimate of age given by Mrs Ray, as Ruth Robertson described the individual as a teenager.

[10] As regards the alleged failure by the police to investigate the appellant's alibi, the advocate depute submitted that there had been no failure on the part of the police in relation to the investigation generally or in relation to the investigation of the alibi. This was not a case in which the police had suppressed evidence (Johnston & Allison v HMA). If there was any disadvantage occasioned by the absence of the CCTV evidence at the petrol filling station or the taxi records, that was a disadvantage to the Crown because the evidential burden was on the Crown. The jury had been made aware of the missing CCTV tape and the missing records as a consequence of the cross-examination of DC Donkin and the positive evidence led by the defence witnesses Inglis and Laverty. The Commission was in no better position than anyone else to say how long the CCTV tape would have been kept by the garage but the police position, as given in evidence, was that enquiries had been made and the police had been told that the tape was not available. Moreover, the Commission speculated about the content of the CCTV tape being favourable to the appellant. That error was repeated on behalf of the appellant in the appeal. Furthermore while the taxi records would probably have identified the driver of the taxi who collected the fare mentioned by Mr Inglis, there was again speculation that the taxi driver would have identified the appellant as his passenger. While it was a matter of good practice for the police to seek to recover such records, there was no legal duty to investigate a defence of alibi or any other lines of enquiry that might exculpate an accused. Such a duty was not a requirement of the principle of equality of arms. The equality of arms was guaranteed by the Crown's duty to disclose material information in its possession. As part of the equality of arms in an adversarial system the accused's representatives were provided with funding by the state to enable them to prepare the accused's defence, including the precognition of witnesses and the recovery of productions which might be beneficial to the accused's defence. Having said that, as a matter of good professional practice the police and the Crown, as part of their respective duties of investigation and prosecution, should pursue what they consider to be reasonable lines of enquiry and should follow up lines of enquiry as a matter of exclusion. While the police ought to have sought to recover the taxi records sooner than they did, that was a matter of practice but their failure to recover the records in this case cannot be said to have resulted in an unfair trial. The absence of the CCTV tape and the taxi records was known to the accused's representatives prior to the commencement of the trial. No motion was made to desert the trial in advance of the date of trial or on the date of the trial itself. Rather, the appellant's representatives used the absence of the material as a basis upon which to attack the police investigation and the jury were aware that the productions were missing. In summary the advocate depute submitted that there was no inequality of arms; whether the missing material would have been helpful to the appellant was speculative; the absence of the evidence was of assistance to the appellant having regard to the burden of proof on the Crown and to the fact that counsel for the appellant took advantage of the missing productions and suggested bad faith on the part of the police; the evidence was not critical to the case; and there had been no plea in bar of trial or objection taken in the course of the trial relating to this issue; the trial judge had given appropriate directions. Any shortcomings on the part of the appellant's solicitor in preparing the case could not be said to have resulted in an unfair trial because it involved speculating as to the content of the missing material.

[11] In relation to the final ground of appeal the advocate depute submitted that there was a strong body of evidence implicating the appellant in the commission of the crime. The positive identification of the appellant by Mrs Ray was supported by the evidence of Mrs Ray and Mrs Reid about the knife and the clothing recovered from the appellant. There were inconsistencies in the evidence of the alibi witnesses in respect of details about which one might expect them to agree. In his interview the appellant had said that he had telephoned from the telephone box in Morgan Street and was picked up there by taxi to travel to the Forfar Road garage. In contrast Brian Borland testified that a phone call was made from the house for a taxi and the taxi came to the house at Baldovan Terrace. Borland had two convictions for attempting to pervert the course of justice. Cheryl Jardine said that either she or Borland made the telephone call for the taxi from their home at Baldovan Terrace. Pauline Bruce testified that she left Brechin at 3.15pm and arrived at the petrol station at 3.50pm. She remembered the time because she looked at the clock in the hotel as she was leaving and it was 3.15. The journey takes between 30 and 35 minutes. She waited 20 minutes at the garage for the appellant to arrive. He arrived by taxi. She testified that she remembered seeing police vehicles outside the post office before she left Brechin. Her evidence in this regard could not be accurate because the robbery did not take place until 3.45pm. Although she told the jury that she waited 20 minutes at the garage for the appellant to arrive she told the police in her police statement that she only waited five minutes. In all the circumstances the jury was entitled to reject the evidence of the alibi witnesses and to prefer the evidence of the Crown witnesses implicating the appellant.

Decision
(i) Evidence
[12] Before considering the particular grounds of appeal it might be of assistance for us to refer to particular passages of the evidence which might have a bearing upon our determination of the issues canvassed before us.

(a) Pauline Alison Sinclair or Ray

This witness was the sub-postmistress of Montrose Street Post Office, Brechin which was the locus of the offence libelled. On the afternoon of the date libelled she was working alone in the post office. At 3.45pm she had served a customer, Mrs Frances Reid, and was speaking to her when a man entered the post office, put his left arm round Mrs Reid from behind at her shoulder level and across the front of her chest with his hand beside her neck. In his right hand he held a knife at the neck of Mrs Reid and ordered the witness to "fill the bag" although he never gave her a bag. The witness refused. The assailant repeated his demand twice but on each occasion the witness refused to comply and the assailant let go of Mrs Reid and walked out of the post office. A scarf covered part of his mouth but the witness could see the rest of his mouth and his nose upwards from behind the customer's head. She described the assailant as 5ft 9ins or 5ft 10ins and wearing bulky clothing. She could not see his hair but she could see his eyebrows. She said that, "his eyes were very prominent, quite prominent eyebrows but it was the eyes". When asked about his clothing she gave a description including "off white coloured like shell suit-type trousers". She described the knife as being serrated on one side and flat on the other. It came to a peak at the top. It wasn't shiny. It was a "dull kind of coloured metal". When shown Crown label number 1 she stated that it was very like the knife that she had seen, although she had not seen the handle of the knife or its sheath in the post office. When asked whether the track suit trousers (Crown label number 2) were similar to the ones described by her as being worn by the assailant in the post office she replied:

"Yes, that is exactly just the way I have just described them, shell suit-type track suit bottoms."

In cross-examination she confirmed that she had seen the knife (Crown label number 1) along with other items, including the shell suit trousers (Crown label number 2), in the days following the incident. She agreed that it was probably 8 April 2004 when she saw these items. She confirmed that she had described the assailant's age as in his early to middle thirties. She agreed that the appellant had a moustache at the date of the trial but she could not recall if the assailant had a moustache. She was referred to her police statement dated 1 April 2004 and confirmed that it was accurate. In the statement she had described the assailant as being between 20 to 23 years old, 6ft in height, large build. She had told the police that the assailant had a pale complexion, blue eyes and light coloured eyebrows. In her statement she said that her first impression was that it was a male called Ian Craig who was a customer in her shop but she realised that it wasn't Ian Craig. It had looked like Ian Craig when the person first walked through the door, but when he faced her, his eyes were not the same as Ian Craig's eyes. She was cross-examined at some length to the effect that she ultimately thought it was Ian Craig but she denied that. She was also cross-examined about the knife and her earlier statement to the police in that regard. Although the statement produced contained a statement to the effect that the knife looked to her like a kitchen knife, she said that she had always said to the police that it was not a kitchen knife. When the police showed her items on 8 April they did not tell her that they had anybody in custody for the offence. They simply asked her to look at items. She denied tailoring her evidence to reflect the items recovered (Crown labels number 1 and 2). When pressed about the assailant having a moustache or not, the witness emphasised that it was his eyes that she noticed more than anything else. When she had been shown the knife she thought it was longer than the knife she had seen on 1 April.

In re-examination she confirmed that in her police statement she had said that her first impression had been that it was a male called Ian Craig who was a customer in her shop. By the time the assailant left the shop she knew that it was not Ian Craig. She was unable to say whether the assailant had a moustache because she focused on his eyes more than anything else. In her original police statement she said that she would be able to identify the blade of the knife if she saw it again. Under reference to her second police statement on 8 April she agreed that the passage relating to the knife which counsel had mentioned in cross-examination contained the sentence: "The blade I was shown was too long." But the statement then continued: "However, when the blade is held halfway down ... around four inches in length the blade is very similar in thickness and colour to that used by the male who held the knife to Frances." When she said that the blade was too long the police officer had held it further down which explained the last comment. She had not seen the whole of the knife in the post office. She confirmed that she could not see the handle of the knife at the time of the assault.

(b) Mrs Frances Reid

This witness was the customer who was in the shop at the time of the incident and was the victim of the assault with the knife. She confirmed that when she was in the post office there were no other customers and after she had been served she remained to have a chat with Mrs Ray. She heard the door of the shop opening and felt somebody pushing her against the counter; someone's hands were on her shoulders; the front of his body was in contact with her back. The man asked Mrs Ray three times to fill a bag. After she had again refused on the third occasion, he let go of the witness. At that point the witness saw that he had a knife with a double edged blade. It was dull in colour and had a ridge or something similar on the blade. She could not see the handle and could only see approximately four inches from the tip of the blade. Comparing that part of the blade with Crown label number 1 she confirmed that was what the knife looked like. Label 1 had a similar ridge as the one on the blade that she had seen in the post office. After she was released, she saw the back of the assailant. She described his clothing, in particular his trousers as being white shell suit-type bottoms. She confirmed that they looked like Crown label number 2. They were the same colour and creased like the trousers worn by the assailant.

In cross examination she was asked about her earlier statements to the police including her description of the knife and the trousers. She said that the trousers (Crown label number 2) did not appear as crinkly as the ones worn by the assailant. Also the knife shown to her by police officers was longer than the four inches of the blade that she had seen at the time of the incident.

In re-examination she confirmed that she had told the police: "The knife blade was longer than the one used by the lad on the 1st April 2004, however, the blade was held half way down, the shape and colour of the blade was the same."

(c) Detective Constable Debbie Donkin

On 8 April 2004 this witness, along with other police officers, went to the appellant's address where the appellant was asleep. They found Crown label number 1, the knife, near a sofa. The appellant was detained and taken to Arbroath police office. The witness interviewed him and referred to a tape recording of the interview and a transcript. The appellant denied involvement in the attempted robbery because he had been in Dundee at the relevant time. He left Dundee at 4.00 or 5.00pm to return to Brechin. He ordered a taxi from Morgan Street phone box and gave the name Kinsella. When the driver arrived the driver thought that the fare might be his brother-in-law who was called Costello. He was driven to Forfar Road garage and thereafter got a lift from Pauline Bruce. The witness confirmed that the journey from Dundee to Brechin would take about 25 or 30 minutes.

The witness was cross-examined vigorously about her failure to investigate the appellant's alibi. She confirmed that she had not spoken to Brian Borland, one of the alibi witnesses, until 24 May 2004 although she explained that she had other work and other enquiries. Moreover, before the appellant was released from police custody she gave him her contact number and told him to contact the defence witnesses and to give them details of how they could contact her. She also stated that she had made attempts prior to 24 May to contact Brian Borland and Pauline Bruce. She had attended at Brian Borland's address on a number of occasions but had been unsuccessful in locating him. She eventually managed to speak to him because she saw him in a public street. She confirmed that she did not personally go to the taxi firm and was unaware of when her colleague had gone there. She confirmed that the appellant's information in his police interview about cashing his giro in Dundee was accurate because the giro book was stamped by the Dundee post office. She also confirmed that his story about his uncle, James Kelbie, appearing in Forfar Sheriff Court on 1 April on a charge of drunk driving was accurate and was verified by court records. The appellant's story about borrowing a car from a Dundee solicitor had been confirmed with the solicitor. In response to a question of whether she had attempted to recover video footage from the Shell garage, she replied that attempts were made to recover it but there was no video footage to recover. She had not been responsible for that particular task and she could not comment as to when a police officer went to the garage to recover it. The following proposition was put to her in cross-examination:

"You see, you will know as an experienced police officer that videos used by companies tend to be taped over again. That is how they operate, don't they? They maybe have a week for tapes and then after a week, unless the police have been in or there has been an enquiry at a particular place, they just tape over the same tapes because that makes common sense so that they don't need 300 odd tapes, they just need a few tapes?"

She assented to that proposition by saying, "Yes".

In re-examination she confirmed that she was the reporting officer and that it was not feasible in a major enquiry such as this one for one officer to carry out all of the enquiries. A number of different officers would carry out different enquiries. She was asked whether police officers had waited for six weeks before they went to the garage, a proposition suggested to her by counsel for the appellant in cross-examination on the basis that it had taken about that time to interview Mr Borland. She denied that to be the case and added:

"I understand that enquiry was made at the time, round about that time. I can't say which date and there was no tape available. No, I can't say whether that was because the video tape wasn't recording, because a lot of places have cameras and don't record, or whether there was just no tape because every business has a different policy on how many days they will keep the tapes for. Some keep them for 24 hours and re-record over them. Some keep one per day for a month. Some, you know, don't record over it until the end of the year. I can't comment on that because I wasn't involved in that part of the enquiry."

(d) Brian Borland

This witness was the first witness for the defence as the appellant did not give evidence. He lived in Baldovan Terrace, Dundee which is "just around the corner" from Morgan Street. In April 2004 he had a partner called Cheryl and a four year old son called Connor. He had known the appellant for years and confirmed that the appellant had had a moustache for many years. On 31 March 2004 he had been drinking in Brechin and had stayed overnight. He travelled back to Dundee with the appellant on 1 April, dropping the appellant's uncle, James Kelbie, at Forfar Sheriff Court. The appellant and the witness went to the witness's house in Baldovan Terrace, then to the office of the witness's solicitor. From there they went to a public house in Arbroath Road and then to the post office where the appellant cashed his giro. After the post office the witness went next door to return the car keys to the solicitor who owned the car in which he and the appellant had driven from Brechin to Dundee. The appellant and the witness purchased a "carry out" and returned to the witness's home after 12 noon. Cheryl and Connor were there but they later left to go to Connor's nursery. The appellant and the witness remained in the house drinking. Cheryl returned but went to collect Connor at about 3.15pm. Cheryl and Connor returned about 3.30pm. The witness said that he later telephoned for a taxi for the appellant because the appellant was "getting picked up". Later his position was that he didn't know if he had telephoned for the taxi or if it was Cheryl. The taxi was going to the Forfar Road garage. When the appellant left the house "he got the taxi". He was aware of the arrangement that Pauline would collect the appellant from the Forfar Road garage. It was an arrangement made by telephone. He did not know if the appellant was speaking on the telephone with Pauline or whether he telephoned James Kelbie to tell Pauline to collect him. The appellant left the witness's house at 3.45pm.

In cross-examination he confirmed his evidence-in-chief that he had been in trouble with the police before and had convictions. He was pressed about convictions for attempting to pervert the course of justice and confirmed that he had two. He reiterated his evidence in chief that when they returned to Dundee he went straight to his house with the appellant. He had a cup of coffee there. The appellant was in the house with him at that time. The appellant was drinking tea. He confirmed their movements that day up to the point of time when they went to the post office. He was pressed about timings. He was asked whether he went anywhere else between the public house and the post office to cash the appellant's giro. He did not think he had been anywhere else. He confirmed that after the post office he went next door to the solicitor's office to return the car keys. He then became uncertain whether he had returned the car keys first or whether he had gone to the post office next door before returning the car keys. He was vague about whether he had been drinking alcohol in his house in Baldovan Terrace in the company of the appellant on a previous occasion but was certain that they had consumed a carry out on earlier occasions in other flats. He said that on 1 April the appellant telephoned Pauline to pick him up "so he (the appellant) had to phone a taxi to go up to the Forfar Road garage so he would get picked up". He then said he didn't know if the appellant telephoned James Kelbie to telephone Pauline or if the appellant telephoned her himself. When asked if the appellant had telephoned somebody, he replied, "I don't know. That's what I'm saying to you. I don't know if he phoned Pauline himself or he phoned James Kelbie to phone the girl." However he did remember the appellant making a telephone call. The time of that call was about 3.30 but he was not certain about the time. He thought that the telephone call had been made on his (Borland's) mobile telephone but he was not sure. The house had no landline but the witness had a mobile telephone. When asked about who telephoned for the taxi he said that he did not know if it was the appellant or himself. He could not remember. He then said he did not know if Cheryl had telephoned for the taxi but he remembered the taxi being called. When asked where the call was made from he replied, "It must be the house". He repeated that it must have been from the house but he could not remember. He was asked whether the taxi arrived before the appellant left the house and he replied: "I think so. I'm not sure. I think so, aye. I'm not sure. It is a long time ago. I can't remember that bit." When asked about not being able to remember "that bit" he replied, "But I know he left about quarter to four." Later when asked about whether he remembered the taxi arriving he replied: "It must have arrived because he left to go and get picked up." He thought the taxi "would be coming to the house."

In re-examination he confirmed that he remembered that day because it was the day that Mr Kelbie had been in court in Forfar and the witness had a doctor's appointment at 4.45pm. The appellant had left before the witness had to go to the doctor's surgery. The appellant must have left some time between 3.30pm when Cheryl and Connor returned from nursery and 4.45pm when the witness left to go to the doctor's surgery.

(e) Cheryl Jardine

This witness was the partner of the previous witness. She confirmed that in April 2004 they were living at 22 Baldovan Terrace, Dundee but now lived at another address. She and her partner had moved house before Christmas 2004. Morgan Street was close to Baldovan Terrace and was about a four or five minute walk away. She confirmed that their son Connor went to nursery but only attended the afternoon session commencing at 12.45pm. That session finished at 3.15pm. She identified the appellant as someone who often came to their house in Baldovan Terrace. On occasions Brian Borland went to Brechin for a night out during the week. He would stay there overnight and return the following day. On one such occasion the appellant came back with him. On that date she remembered the appellant being in their house drinking with Borland. She could not assist with the date of that occasion. They arrived at the flat at about 12.30pm. She recalled the time because she was getting Connor ready for nursery. After taking Connor to nursery she returned to the flat and the appellant was still there. He was still there when she left the flat at 3.05pm to go to nursery to collect Connor. When she returned at about 3.25pm the appellant was still there. She remembered that he left by taxi. She could not remember who telephoned for the taxi. It might have been herself.

In cross-examination she was asked when she had first been required to think about the events of the appellant's visit to the house and she said that it might have been weeks or months after Christmas before she was contacted by the appellant's solicitor for a statement. She had a regular daily routine. She woke up at 7.30am which was the time that Connor always wakened. She bathed her son, gave him breakfast and he watched cartoons. She had a bath, got ready and Connor played until she got him ready to go to nursery. She did not leave the flat that morning. The appellant and Brian Borland arrived at the flat at 12.30pm. Neither of them had been to the flat earlier that morning. She confirmed that there had been other occasions when the appellant had been in the flat with Brian Borland drinking beer. Before the telephone call for the taxi there was another telephone call which she thought she had made. This was a call to Pauline Bruce. The witness used her mobile telephone to make that call. She had known Pauline Bruce for about a year and saw her on average once a month in Dundee. She telephoned Pauline Bruce about 3.45pm. She then said it was either she or Brian Borland who had made that telephone call. On being pressed she said that she remembered Pauline's voice and confirmed that it was she who had telephoned Pauline. The message that she gave Pauline was to collect the appellant from the garage. At that time Pauline was in Brechin. As for the telephone call to the taxi, she thought that she had made that call. She asked the taxi to go to Forfar Road garage and to come to 22 Baldovan Terrace. There was only about five minutes between these two telephone calls. It would take five minutes to travel by car from her flat to the garage. She wasn't sure how long the taxi took to arrive but she estimated five minutes.

(f) Pauline Bruce

This witness was the former partner of James Kelbie, the uncle of the appellant. On 1 April 2004 after his court appearance at Forfar Kelbie telephoned the witness and asked if she would go to Forfar to pick him up. She met him at a supermarket near the court and he was with two other men who lived in Kirriemuir. She did not know them but at Kelbie's request she took them to Kirriemuir. The three men went into a public house there and shortly afterwards Kelbie came out and she drove him to Brechin where she dropped him at Morgan's Hotel. She then went home. Later she took washing to Kelbie's house and went from his house to Morgan's Hotel. Kelbie asked her if she had been to collect the appellant to which she replied in the negative but stated that she was just leaving. She looked at the clock in the hotel and it was 3.15pm. Just before getting into the car she telephoned the appellant to tell him that she was on her way through to Dundee and she arranged to meet him at the Forfar Road garage. She arrived there at 3.50pm. She remembered the time because she knew that her 15 year old son was due home from school. He finishes school at 3.45pm. When she arrived at Forfar Road garage the appellant was not there. He arrived 20 minutes later at 4.10pm. He arrived by taxi. The journey from the garage to Morgan's Hotel in Brechin would take 30 or 35 minutes. As regards the timing of the arrangement to collect the appellant from the Forfar Road garage there was the following exchange between counsel for the appellant and the witness:

Q. Now, one matter which you might be asked about in some graphic detail is the arrangement to go to the garage and pick up Mr Kinsella?

A. Yes.

Q. Now, was this arrangement made on the day ...?

A. It was actually made, the arrangement was made the day before, the evening before Mr Kelbie had court.

Q. And why was that arrangement made? Were you aware? Were you there?

A. I actually ironed his clothes for court, Mr Kelbie's clothes for court, the following day. There was myself, Mr Kelbie, Mr Kinsella and I now know it was Brian Borland that was in James Kelbie's house and they had arranged that Mr Kinsella was driving the Mercedes through to Dundee but dropping Mr Kelbie off in Forfar for his court case.

...

Q. Was it your understanding that something was to happen to that car in Dundee?

A. No, it was just getting dropped off. I don't know. It was getting dropped off.

Q. So Mr Kinsella was not going to be bringing the car back to Brechin?

A. No, that is why I said I would pick him up the following day.

Q. Did you arrange a time when you would pick him up?

A. No.

Q. Was it then decided on any of the detail as to how it would be you would pick him up?

A. I just said that I would wait until I heard from Mr Kelbie about what time he was going to finish at court and then I would arrange with Mr Kinsella once I had got Mr Kelbie back to Brechin."

She said that she telephoned the appellant's mobile telephone number to make the arrangement to meet him just before she left Brechin.

In cross-examination she confirmed that after dropping Mr Kelbie at Morgan's Hotel in Brechin she was in her home at 2.30pm. She was sure of the time because she looked at the clock. She took washing out of the washing machine which had been washed when she was away to collect Mr Kelbie and she took it along to his house by car. She knew the time that she left Morgan's Hotel to collect the appellant because she had looked at the clock in the hotel. She also confirmed that she had told the police that she could remember the day because she remembered seeing police vehicles outside the post office after she had dropped off Mr Kelbie's washing. There was a transit van on one side of Montrose Street and a police van at the other side. Both were sitting beside the post office. She confirmed arriving at the garage at Forfar Road and waiting 20 minutes for the appellant. She was referred to her police statement in which she said that she had waited for five minutes for him to arrive. She denied that she was altering the timings to fit in with his alibi. She was re-examined to show the consistencies between her police statement and other parts of her evidence.

(g) Douglas Alan Inglis

This witness is a partner in Tele Taxis Dundee Limited. He testified about the system in operation at the taxi firm. Everything is logged by computer. The records are stored for three months. He was first contacted in 2005 by the police in respect of an enquiry relating to the appellant. Prior to that he had given information to a firm of solicitors, Myles Laverty when he still had the relevant information on the computer system. He did not recall receiving the letter from Mr Laverty dated 21 April 2004 (defence production number 1) but he remembered speaking to him on the telephone. From reading the letter he was able to confirm that there had been a record of a taxi journey from the phone box in Morgan Street to Forfar Road. He could not say whether there was a driver called Costello because they employed 500 drivers. He had been able to confirm the time of the journey but now could not recall it. The police had first contacted him after he had received a citation to appear as a witness for an earlier diet of trial in 2005.

In cross-examination he confirmed that he did not recall ever seeing the letter dated 21 April 2004 but he remembered a telephone enquiry from a solicitor's firm about a particular journey. He did not remember the name of the person about whom the enquiry related. If he had not seen the letter he would not have remembered the name Costello. He could not remember the time of the journey. He did remember that the pick up point was Morgan Street telephone box.

(h) James Laverty

This witness is a partner of Myles Laverty. He is a solicitor advocate, a lecturer in criminal procedure at the University of Dundee and a tutor in criminal advocacy. He had been instructed to represent the appellant in connection with this case. On 20 April 2004 the appellant advised him of the details of his defence of alibi. As a result the witness wrote to Tele Taxis in Dundee on 21 April 2004 seeking verification of details of a particular taxi journey. Defence production number 1 is a copy of the letter. On 22 April the witness learned that Mr Inglis had telephoned the office in response to the letter and he returned Mr Inglis' telephone call. Mr Inglis confirmed that there had been a taxi journey on 1 April 2004 from Morgan Street to the Shell garage at Forfar Road, Dundee. The time of the journey was approximately 15.45 hours. The name of the fare was "Costello". The witness did not seek to obtain any records from the taxi firm until late January 2005. At that date he had been unable to recover them.

In cross-examination he confirmed that Mr Inglis did not have a note of the exact time in front of him when he was speaking to the witness on the telephone although Mr Inglis referred to the pick up point as Morgan Street. The letter dated 21 April indicated that the appellant had told the witness that the appellant phoned for a taxi to pick him up at about 4.00pm in the name of Kinsella from the Morgan Street phone box going to Forfar Road garage. The witness normally kept records of what was said in the course of telephone calls but on this occasion he did not. The reference to the time of 15.45 was based upon his own recollection of what was said on 22 April 2004. His recollection that an approximate time was the best that Mr Inglis could give. Mr Inglis did not give the witness any information about a booking in the name of Kinsella.

(ii) Non-disclosure

As noted in the submissions the appellant complains about three separate instances of non-disclosure namely the non-disclosure of (a) the emulator sheet containing an image of the appellant taken in 1994, (b) the witness statement of Ruth Robertson and (c) the crime report. The advocate depute accepted that there had been no disclosure to the appellant's representatives of each of these items and conceded that there ought to have been disclosure of the emulator sheet and Ruth Robertson's statement. However his position was different regarding the crime report. That would not normally be disclosed to the defence but if the Crown learned of material within the crime report which ought to be disclosed the Crown would disclose it. Mr Shead's position was more fundamental and was to the effect that the material within the crime report should be deemed to be in the possession of the Crown.

Before considering the various issues raised concerning the dock identification of the appellant and the alleged non-disclosure of material by the Crown we have noted the position adopted by the Commission in regard to these matters. In the Commission's interim statement of reasons the Commission concluded that the appellant was not denied a fair trial due to the manner in which he was identified. In reaching that conclusion the Commission had regard to the decision of the Privy Council in Holland v HMA 2005 1 SC (PC) 3. In contrast in its final report the Commission concluded that the Crown had been under a duty to disclose the emulator sheet regardless of whether or not the defence asked for it. As we have already observed the duty of disclosure was not disputed by the advocate depute. Thus what is significant is the effect of the non-disclosure. In relation to the dock identification of the appellant and the failure to disclose the emulator sheet, the Commission observed:

"169. ...Ms (sic) Ray's evidence was the only evidence physically identifying the applicant as the assailant. An identification parade was not held and there was no evidence led by either the Crown or the defence of Ms Ray's earlier identification of the applicant by photograph. There is, accordingly, nothing in the evidence now available which directly undermines Ms Ray's dock identification at trial. Nevertheless, it is impossible to separate that identification from Ms Ray's earlier selection of the applicant's image from the photo‑spread. Indeed, had the photo‑spread included the photograph taken of the applicant on 9 April 2004 then it is possible that she would not have identified him at all (emphasis added). Although the assessment of age is imprecise, in the Commission's view there could be no mistaking that the image in the photo‑spread depicts the applicant at a significantly younger age than he was at the time of his detention. On any view it would be difficult to maintain that the latter photograph taken on 9 April shows a man between 20 to 23, the age specified by Ms Ray in her initial statement to the police.

170. It is not clear what use the defence would have made of the photo‑spread had it been disclosed. Both Mr Laverty and Mr Niven‑Smith considered the photo‑spread to be significant evidence for the defence, although, as Mr Niven‑Smith made clear, any decision to raise the matter with Ms Ray in cross examination would have resulted in the jury being made aware that she had identified the applicant on a previous occasion. It might also have alerted the jury to the fact that the applicant had come to the attention of the police on a previous occasion. However, it would at the very least have been possible to argue before the trial judge that the age of the image used in the photo-spread was so unfair that Ms Ray's identification ought not to be admitted (emphasis added). Since Ms Ray's evidence was crucial to the Crown case such an argument, had it been successful, would have resulted in the applicant's acquittal. ...

171. For these reasons the Commission considers that the information contained in the photo‑spread might have played a useful part in the defence effort to undermine the reliability of Ms Ray's identification of the applicant. In other words the Commission cannot say that the fact that counsel was unable to raise the age of the photograph as an issue of fairness before the trial judge and/or in his cross examination might not possibly have affected the jury's (majority) verdict. The Commission accordingly believes that a miscarriage of justice may have occurred in respect of this matter."

[13] Mr Shead adopted a similar approach to that of the Commission and relied upon the observations of Lord Rodger of Earlsferry in Holland v HMA where the Crown had failed to disclose information about the complainers facing outstanding drugs charges. At paragraph [82] Lord Rodger of Earlsferry observed:

"Information about the outstanding charges might therefore have played a useful part in the defence effort to undermine the credibility of the Crown's principal witness on charge 2. At least, that possibility cannot be excluded. One cannot tell, for sure, what the effect of such cross-examination would have been. When applying the test suggested by Lord Justice General Clyde in Hogg v Clark (p. 10) I cannot say that the fact that counsel was unable to cross-examine in this way might not possibly have affected the jury's (majority) verdict on charge 2 - and hence their verdict on charge 3."

Insofar as Mr Shead sought to rely upon these observations as indicating that once non-disclosure had been established a low threshold should be applied to the determination of the question whether that non-disclosure had resulted in an unfair trial, he was clearly in error. The question of the appropriate test was considered by the Supreme Court in McInnes v HMA 2010 SC (UKSC) 28. In that case Lord Hope explained that two questions arise in a case of this kind and that the test to be applied in answering each of these questions is different. The first question, whether there ought to have been disclosure, does not arise in this case as that matter is conceded. The second question relates to the consequences of the non-disclosure namely:

"whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair".

Lord Hope enunciated the test in the following way:

"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." (Para. [20])

At paragraph [21] Lord Hope rejected the suggestion that Lord Rodger's observations at para. 82 in Holland v HMA indicated a low threshold test and at paragraph [22] he observed under reference to Lord Rodger's comments:

"The words 'might not possibly have affected the jury's (majority) verdict' are used. But Lord Rodger does not say that this is the test to be applied in determining whether the trial as a whole was fair. In any event, I do not think that it would be the correct way of describing it."

In his opinion Lord Rodger did not demur from these observations by Lord Hope and while he did not make reference to his earlier comments at paragraph 82 in Holland he dealt with the question of the appropriate test where there had been an infringement of an accused's Article 6(1) Convention Rights. At paragraph [30] he recognised that the significance of an infringement will depend upon the circumstances and added:

"As has been said on many occasions, not every infringement of a particular right will mean that the accused's trial as a whole has been unfair...Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict."

In McInnes v HMA Lord Brown also applied a similar test when he observed at paragraph [39] that:

"a finding of materiality relative to the disclosability of a document is not to be confused with a finding that it would actually have been of value to the defence nor regarded as pre‑empting the defendant's need on appeal to establish that, but for the non-disclosure, he would have had a realistic prospect of a acquittal."

It is clear from the above passages that the test to be applied by this court is whether there is a real possibility that if the material had been disclosed the appellant would have had a realistic prospect of acquittal, taking into account all the circumstances of the trial. That is undoubtedly a different approach from that adopted by the Commission. At paragraph 169 of its report the Commission speculates that it is possible that Mrs Ray would not have identified the appellant had his 2004 photograph been used for his image on the emulator sheet. That approach fails to take into account the circumstances of the identification and the basis upon which Mrs Ray was able to identify the appellant. Mrs Ray was clear in her evidence that she was looking at the assailant through a glass screen and she concentrated on his eyes. That is not surprising in view of the fact that he was wearing a hat and that a scarf was covering the lower part of his face up to his mouth. Although the basis of the identification and the emphasis of Mrs Ray upon the eyes of the appellant was acknowledged in the interim report of the Commission it was ignored by it in paragraph 169 of its final statement of reasons. Apart from the identification of the appellant by the prominence of his eyes, there was other evidence in the trial supporting Mrs Ray's identification. She described the assailant as having blue eyes and light coloured eyebrows. According to Mr Niven‑Smith's statement to the Commission (page 4) the appellant has blue eyes and light eyebrows. These features would have been apparent to the jury. In addition, the identification of the appellant as the assailant was supported by the identification of the appellant's knife as being similar to the knife used by the perpetrator of the crime. It had unusual characteristics. It was dull in colour; it had a double edged blade; and it had a ridge. It had been found under the settee where the appellant was sleeping. The appellant admitted that it was his knife. There was further support for Mrs Ray's identification from the similarity of the trousers belonging to the appellant to the trousers worn by the assailant. Both Mrs Ray and Mrs Reid confirmed that. Moreover the appellant's legal representatives were aware prior to the trial that Mrs Ray had identified the appellant from a number of images on an emulator sheet, even although the sheet was not itself disclosed. The appellant's counsel elected not to cross examine Mrs Ray about that matter. That decision is understandable because such cross examination might have reinforced her identification of the appellant in respect that the jury would then be aware that she had identified the appellant from photographs shown to her a week after the crime was committed. Even if the appellant's representatives had been aware that the photograph of the appellant in the emulator sheet shown to Mrs Ray had been taken when he was much younger, it is doubtful whether that would have undermined Mrs Ray's identification of the appellant. It would have had no effect upon her evidence about the colour of his eyes and eyebrows or about his clothing and his knife. Indeed it appears to us that if the jury had been aware that Mrs Ray had identified the appellant from an old photograph, that was more likely to reinforce her identification of the appellant by the prominence of his eyes. When all of the evidence relating to the implication of the appellant in the commission of the crime is considered, we are satisfied that there is no real possibility that the failure to disclose the emulator sheet of itself resulted in an unfair trial.

[14] We can deal more succinctly with the non-disclosure of the statement which Ruth Robertson gave to the police. As noted above, it is a matter of concession that this statement ought to have been disclosed. In considering whether the disclosure of the statement would have resulted in a realistic prospect of the jury returning a verdict of acquittal, it is important to consider the information provided by the witness to the police at the time. Her statement was to the effect that she went into the post office at about 3.40pm on 1 April 2004. Pauline Ray was serving an elderly woman. Two other elderly ladies entered the post office and were still there when she left. As the witness was walking towards her car she saw a male walking on the pavement on the other side of the road. As far as her description of that person is concerned she stated:

"I would describe him as a teenager, maybe 16/17 years. I'm not sure of the height, white skin wearing a woollen tammy dark coloured, a dark coloured scarf or maybe a polo neck covering his neck, a light coloured (beige/cream colour) jacket. The jacket appeared to be fastened. It was straight sided and finished just below the waist. The trousers were black coloured. I did not notice what he had on his feet."

From that statement it is clear that the witness was in the post office when other customers were present and at a time prior to the arrival of Mrs Reid. Her sighting of the teenager was probably prior to Mrs Reid entering the post office. Thereafter Mrs Reid was served and remained to chat with Mrs Ray. What is more significant, however, is our view that the person whom Ruth Robertson described could not have been mistaken for the assailant. He was much younger than the assailant and was only aged 16/17 years old. In addition, although the advocate depute acknowledged that there were similarities as far as clothing was concerned, these were restricted to the fact that the teenager was wearing a dark hat in the form of a tammy and he might have been wearing a dark coloured scarf. However, when considered as a whole Ruth Robertson's description of the teenager's clothing did not match that of the assailant, especially his jacket and trousers which were particularly noted by each of the two eye witnesses present in the post office at the time of the offence. Mrs Reid described the assailant as wearing a dark jacket and light coloured trousers whereas Ruth Robertson described the teenager as wearing a light coloured jacket and black trousers. Mrs Ray described the assailant's jacket as being of an anorak or jerkin type jacket and dark in colour. It may have had a stripe. His trousers were off-white coloured, similar to Crown label number 2. The youngest estimate of age given by either of the witnesses in the post office at the time of the attack was contained in Mrs Ray's police statement when she estimated the age of the assailant as being between 20 and 23 years old. For a variety of reasons the youth seen by Ruth Robertson could not have been the assailant. He was too young. He was wearing the wrong colour of jacket. He was wearing the wrong colour of trousers. Moreover he was walking down the street at a time before Mrs Reid had entered the post office. We are satisfied that the failure to disclose this statement was of no consequence to the outcome of the trial and there is no realistic prospect that its disclosure would have resulted in the jury reaching a different verdict.

[15] The third matter with which we are concerned is the crime report. Unlike the emulator sheet and Ruth Robertson's statement the advocate depute did not accept that the crime report should have been disclosed, although he did accept that there was an obligation to disclose material within it which might be relevant to the conduct of the defence. With that latter proposition we agree; in the present case an example of material within the crime report which ought to have been disclosed is the statement by Ruth Robertson to which we have already referred. However, as for the obligation to disclose the entirety of the crime report, we consider that it is important that there is an appreciation of the nature of that document. The document is a log initiated at 0029 hours on 2 April 2004 outlining details of the offence and the identity of the reporting officer and the investigating officers. Although the first page contains the name of the appellant as the accused and pages 2 to 4 inclusive list the names of suspects and civilian witnesses it is apparent from the text of the report that these details would be included as the police investigation progressed, the most obvious example being the appellant who was not taken into police custody until 8 April in connection with charge 2 and was not interviewed about the attempted robbery until 9 April. The crime report is essentially a log of police activity updated on a regular basis up to and including the caution and charge of the appellant. It records such actions as the instigation of the VIP informer scheme and the suggestion by police officers, aware of the enquiry, of names of potential suspects because they had analogous previous convictions. Ian Craig had been included in the list of suspects as his name had been mentioned by Mrs Ray. The crime report discloses that the potential suspects were traced, interviewed and eliminated. It is clear from the report that this was not merely a formal exercise. For example, in the case of Ian Craig, the police enquiries involved going to his home and asking him to attend voluntarily at the police station where he was interviewed about details of his movements on 1 April 2004. His mother was interviewed independently and she confirmed Craig's account but the report discloses that the investigating officers did not simply rely upon the statement of Craig and his mother before eliminating him as a suspect. With Craig's consent, his home was searched and no clothing of the description worn by the assailant was found there. We have considered the nature of the crime report and agree with the advocate depute that it is not a document that requires to be disclosed in its entirety. The crime report forms the basis of the police report which is submitted to the procurator fiscal and which is disclosed to an accused's representatives. The police report should contain all relevant information. The advocate depute accepted that if there was other relevant information within the crime report that too should have been disclosed. An obvious example is the statement of Ruth Robertson.

[16] The issue for us, therefore, in the context of the crime report is whether there was any material in it which ought to have been disclosed, apart from the statement of Ruth Robertson. Mr Shead relied upon three aspects of the report, namely (a) the fact that a number of suspects were identified in the report, including Ian Craig, (b) a reference in the report to a hitchhiker who appeared agitated and (c) the impression from the report that once the appellant had been identified no further investigation was undertaken by the police as regards the other suspects or other lines of enquiry. The appellant's representatives were aware of the contents of Mrs Ray's statements in which she referred to Mr Craig. Moreover Mrs Ray was cross examined in some detail about this aspect of the case and the jury thus had evidence of the fact that she had made a statement to the police in which she mentioned Ian Craig. The disclosure of the relevant passages in the crime report would not only have confirmed that Mrs Ray had made such a statement but would also have shown that police officers investigated the possibility of his involvement in the crime but, for reasons already explained, had excluded him as a suspect. Thus even if there had been an obligation upon the Crown to disclose the police investigation in relation to Ian Craig (which we do not accept) the outcome of such non-disclosure would not have produced a realistic prospect of a different verdict in this case. On the contrary, if the jury had been aware that the police had interviewed Ian Craig and his mother and had in addition searched his home for clothing similar to the clothing described by Mrs Ray but had found none, that evidence would simply have reinforced their view that Ian Craig was not involved in the crime. The jury would be in no different position as regards the question whether Mrs Ray had identified Ian Craig as the perpetrator of the crime (as was suggested to her in cross examination) or whether it had been her initial impression as the person entered the shop that it was Ian Craig but that she had realised that he was not the assailant before he left.

[17] The second issue raised in the context of the crime report was the reference to a motorist's witness statement in which he referred to picking up a hitchhiker. This statement is summarised at page 9 of the crime report and refers to a motorist picking up a hitchhiker who appeared agitated and in the course of conversation told the motorist that he had "had a fallout with two guys and the police." The motorist had left his work at 6.30pm at Edzell and had driven through Brechin. When he was at the traffic lights at Brechin Bridge he was aware of the hitchhiker to whom he offered a lift. The hitchhiker was wearing blue jeans and a light cream coloured jacket. The motorist gave a facial description including the fact that the hitchhiker had "brown eyes, almost cross eyes", which moved constantly. We do not accept that this statement ought to have been disclosed. The pickup point was nowhere near the post office and it was several hours after the incident there. More significantly the description of the hitchhiker bore no relationship to the assailant in the post office. In the first place the clothing did not match. Both the jacket and trousers were the wrong colour and the trousers were the wrong type, being jeans rather than shell suit trousers. In addition Mrs Ray had remarked upon the distinctive eyes of the assailant which were blue. The hitchhiker's eyes were brown and almost cross eyes which moved constantly. It is inconceivable that the disclosure of the motorist's statement about the hitchhiker would have resulted in a different verdict and we are satisfied that there would be no realistic prospect of such an outcome if there had been such disclosure.

[18] The final point advanced on behalf of the appellant is that the police ought to have disclosed that they were investigating other suspects and that it appears that once the appellant had been identified the investigation of the possible involvement of others ceased. Except in a case where an offender is apprehended at the scene in the course of the commission of an offence, it would be surprising if the police did not pursue various lines of enquiry in an effort to solve a crime, including attempting to trace criminals who had committed similar offences in the past to eliminate them from their enquiries and enlisting the aid of the public at large in reporting anything suspicious occurring on the day in question. It is clear from the crime report that the police in this case were diligent in that regard. However, once the appellant had been apprehended and cautioned and charged with the offence there was no need for the police to undertake further enquiries to trace the culprit. By that time the evidence clearly disclosed that apparently only one person was involved in the crime. That person had been identified as the appellant and linked to the crime by his clothing and the knife which had been found under his settee and which he admitted to be his. If subsequent information had become available to the police implicating another suspect it would, of course, be the duty of the police to investigate that matter but it is unrealistic to expect police officers to continue to pursue enquiries into the possible solution of a crime when they are in possession of sufficient information to justify charging a suspect and do so. We are satisfied that there is no merit whatsoever in this particular complaint.

[19] For the foregoing reasons we reject Mr Shead's submissions insofar as they are based upon non-disclosure. We are not persuaded that there was an obligation to disclose the crime report but, even if there had been an obligation to disclose the elements within it mentioned by Mr Shead, we consider that these fall into the same category as the emulator sheet and Ruth Robertson's statement. None of the items considered individually or even considered cumulatively with the other items would have created a realistic prospect of the jury reaching a different conclusion in this case.

(iii) Failure to hold identification parade
[20] Mr Shead relied upon the fact that no identification parade had been arranged despite the fact that the appellant had expressed a willingness to participate in such a parade. However, it was not said that a formal request for such a parade had been made by the appellant or his legal representatives. On the assumption that there was no such formal request we consider that the criticisms in this regard amount to no more than a submission that no identification parade was held. Such a submission was rejected in Hanif v HMA 2009 SCCR 38. In that case witnesses had been shown the photographs of the accused but no identification parade had been held. The Procurator Fiscal had instructed an identification parade to be held but the officer in charge of the case decided that a parade was not essential and none was held. In that case reliance was placed by Mr Shead, who appeared on behalf of Mr Hanif at the appeal hearing, upon Scottish Home and Health Department Guidelines promulgated in 1982. In the course of the trial objection had been taken to the dock identification of the appellant because no identification parade had been held and there had been an alleged irregularly in relation to identification from an emulator sheet. The trial judge had refused to entertain the objection as it had not been taken at a preliminary hearing. In its Opinion at paragraphs [26] and [27] the Court observed:

"We would add that it should be noted that this is not a case in which the Crown sought to obtain a dock identification notwithstanding a failure on the part of the witness to identify the accused in an identification parade, or indeed a failure on the part of the witness to identify the accused from a selection of photographs, which included one of the accused.

[27] The thrust of the submissions of counsel for the appellant was directed simply to the fact that no identification parade was held; and at times it seemed that he was urging that the holding of an identification parade was a quasi-legal necessity if a dock identification were able to be admissible in the circumstances of this case. But the guidelines to which we were referred are, of course, only guidelines by the executive branch of government to police forces and beyond that have no legal status. Further, for the reasons advanced to us by the advocate depute we do not consider that observance of those guidelines dictated the holding of an identification parade in the circumstances of this case. Further, it was always open to the appellant and his advisers to request the holding of an identification parade if he or they thought that to be in his interest. But no such request or suggestion was ever made."

It seems to us that these observations are equally apposite in the present case. Although a willingness to attend an identification parade was expressed on behalf of the appellant that is different from a formal request for such a parade. As we have already noted, we were not advised that any formal request had been made. On that basis we consider that there is no merit in this particular submission.

[21] However, for the sake of completeness we would observe that even if there had been a formal request for such a parade in the present case that would not necessarily avail the appellant. Before the service of the indictment the appellant and his professional advisers were aware that Mrs Ray had identified the appellant from an emulator sheet. Equally if the appellant or his advisers had made a formal application that an identification parade should be held, that fact would also be known to them prior to the service of the indictment. In these circumstances, if they had considered that the leading of Mrs Ray's dock identification of the appellant would be oppressive or otherwise unfair, objection to the admissibility of that evidence should have been taken at a preliminary hearing, failing which during the appellant's trial if the appellant could satisfy the court that the objection could not reasonably have been raised earlier (Criminal Procedure (Scotland) Act 1995, sections 72 and 79). In the event, no such objection was taken either at the preliminary hearing or at the trial. Moreover, no case based upon oppression was advanced before this court. In some respects the circumstances in Hanif were more compelling than in the present case because in Hanif the procurator fiscal had instructed the police officers to hold an identification parade but they did not do so for reasons already explained. We are not persuaded that there is any merit in the criticism of the procedure adopted in this case and we reject Mr Shead's submissions in that regard.

(iv) Failure of the police and the appellant's solicitor to recover taxi records and CCTV evidence.

[22] We consider that it is important to put into context the non-availability of the records from the taxi company and from the garage. The offence which is the subject of this appeal was committed on 1 April 2004. The second offence to which the appellant tendered a plea of guilty occurred on 7 April 2004 and the appellant was arrested for that offence on 8 April. He was interviewed in respect of the attempted robbery on 9 April 2004 when he gave details of the alibi advanced on his behalf at his trial. In its report the Commission is critical of the police investigation for failing to contact alibi witnesses sooner than six weeks after the appellant's arrest and for failing to recover CCTV images from the garage and the records of the taxi firm allegedly used by the appellant in Dundee on the date of the attempted robbery. Thereafter, on the basis of these alleged failures, the Commission speculates that the material which was not produced, namely the taxi records and CCTV images, would have been favourable to the appellant's defence although earlier the Commission observed:

"It is not possible to say now what these particular lines of investigation might have revealed, and the possibility that any information uncovered might have undermined the applicant's alibi cannot be discounted. The most that can be said is that the enquiries were potentially important to the applicant's defence to the charge." (Para. 100.)

Despite that cautious approach the Commission in the following paragraph observes:

"When all of these matters are considered together, the Commission considers that a picture emerges of a police investigation which was undermined by a number of important failures. When the case as a whole is considered objectively these failures raised concerns about the fairness of the applicant's trial. Moreover, as a result of some of these failures, crucial evidence emerges which might have been important to the applicant's defence, but of which either his legal representatives were not made aware or which was not adequately investigated. ... The Commission further notes the opinion, delivered by the Lord Justice Clerk in relation to the court's consideration of the police conduct in Johnston v HMA 2006 SCCR 236, at paragraph 127, that:

'It is sufficient for us to say that the appellants were deprived of the opportunity to lead all of the evidence that would have been favourable to their defence and of arguing its full significance before the jury. They were therefore deprived of a fair trial. In this respect, too, they suffered a miscarriage of justice.'"

We consider that these comments are unfair and reflect a considerable degree of speculation on the part of the Commission. It is not apparent to us that the analogy drawn by the Commission between this case and Johnston and Allison v HMA is apt. In that case there was suppression of evidence by police officers who failed to pass to the procurator fiscal statements favourable to the defence case. It is in that context that the observations of the Lord Justice Clerk quoted by the Commission should be considered. There is no suggestion of suppression of evidence in this case nor, in our view, can it be asserted that the appellant was deprived of an opportunity to lead evidence "that would (our emphasis) have been favourable" to his defence. The Commission has failed to appreciate the reality of the situation. In the first place, the Commission appears to make no allowance for the fact that the police officers were engaged in other enquiries; the appellant was released; that prior to his release he was given DC Donkin's telephone number and advised to contact his defence witnesses and advise them where she could be contacted; that prior to the date on which she obtained a statement from Brian Borland and Pauline Bruce attempts had been made to contact them but had been unsuccessful; and that she ultimately managed to speak with Brian Borland when she saw him in the street. All of these facts were contained within her evidence given in cross-examination at the appellant's trial. Thus the implication that police officers did nothing to trace witnesses or to encourage them to contact the police to give statements is completely without foundation. The second omission on the part of the Commission was to ignore the evidence of Detective Constable Donkin in cross-examination that attempts had been made to recover the CCTV images from the Shell garage but there had been no footage to recover. Rather the Commission relied upon the fact that there was no written record of such an enquiry (paragraph 68). The report of the Commission records that subsequent police enquiries disclosed that since the date of the offence the ownership of the garage had changed, as had the CCTV system, and that prior to the change in management the CCTV system ran on a seven day cycle with the tapes being recorded over every seven days. Indeed in the last exchange in cross-examination of DC Donkin quoted above (paragraph [12]) counsel for the appellant suggested to the witness that companies tended to re-use CCTV tapes and further suggested that after a week tapes might be re-used unless there had been a police enquiry. On that timescale the CCTV tapes at the Shell garage for 1 April 2004 would no longer have been in existence on 9 April when the appellant provided the police with his alibi. Moreover, that timescale would support DC Donkin's understanding that when police enquiries were made of the operators of the garage no tapes were in existence. Thus, even if there is an obligation on police officers to investigate an alibi as a matter of urgency, a matter to which we shall return, the failure to make enquiries at the garage immediately after the interview of the appellant did not deprive him of any evidence then available concerning events at the garage on 1 April 2004. Moreover, a delay of about six weeks in tracing defence witnesses did not cause the appellant any prejudice or disadvantage, particularly as police officers had made earlier efforts to trace the witnesses and the witnesses had been encouraged to contact the police of their own accord, which they failed to do. In any event, these witnesses were available at the appellant's trial and were adduced as defence witnesses. In contrast there can be no doubt that there was a delay on the part of the police in making enquiries of the taxi firm and such enquiries were ultimately instructed by the procurator fiscal. By that time the records of the taxi firm had been destroyed but we consider that it is significant to bear in mind that, prior to their destruction, Mr Laverty, the appellant's solicitor, had been in contact with the owner of the taxi firm, had obtained information apparently supporting the appellant's alibi but had failed to take any steps to recover the records of the taxi firm.

[23] We were not referred to any common law duty on the part of the Crown or police officers involved in the initial stages of an investigation requiring them to investigate every possible line of defence. The absence of any such duty is reinforced by the inclusion in section 36 of the Criminal Procedure (Scotland) Act 1995 of an obligation upon the prosecutor to investigate any ostensible defence disclosed in the course of a judicial examination. The relevant provision is contained within section 36(10) which is to the following effect:

"Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination."

The terms of that provision explicitly restrict the duty upon the prosecutor to an investigation of the ostensible defence to such extent as is reasonably practicable (our emphasis). It seems to us that if there is any common law obligation upon the Crown or the police to investigate a positive line of defence it must be circumscribed by similar considerations of reasonable practicability and must take account of the particular circumstances of any case. Where an accused person is unrepresented for whatever reason and is detained in custody the obligation to investigate a line of defence might be seen to be greater than where an accused is at liberty and is legally represented. In the present case the appellant was in the latter category and it is apparent from his solicitor's submissions to the Commission, recorded at paragraph 46 of its report, that the appellant's solicitor had knowledge of the appellant's alibi prior to the procurator fiscal. When the appellant's solicitor first contacted the procurator fiscal on 21 April 2004 the procurator fiscal was only in receipt of the police report and the transcript of the appellant's interview with the police had not been completed by then. On the same date the solicitor had written to the owner of the taxi company and thereafter he spoke with him the following day. Thus, as far as the investigation into the records of the taxi company was concerned, the appellant's solicitor was ahead of the procurator fiscal and at that stage the records were still in existence. In these circumstances it is difficult to understand the submission on behalf of the appellant, adopting the criticisms of the Commission, that the appellant received an unfair trial because of the failure of the procurator fiscal and/or police officers to investigate the appellant's alibi to the extent of recovering the records of the taxi company. In the context of our system where accused persons are provided with state funding in the form of legal aid for the preparation and conduct of the defence we consider that the primary obligation of investigating and presenting a positive defence such as an alibi rests with the legal representatives of an accused. They are in the best position to pursue such enquires because they have access to the accused who can provide them with information which he is not obliged to provide to others, including the police and prosecuting authorities. Where, however, an accused provides the police or prosecuting authorities with details of such a defence the obligation upon the Crown is to ensure that such information is imparted to the accused's representatives, unless the Crown is aware that such information is already in their possession. In the present case the Crown was so aware, as is evident from the passage of the Commission's report at page 46 already referred to. The imposition of the primary duty upon the Crown to investigate an alibi has similar objections to those identified by Lord Rodger of Earlsferry in relation to disclosure in McDonald & others v HMA 2008 SCCR 954 where he observed at paragraph 60:

"The Crown's job is to prosecute, not to defend: defending is the job of the accused's representatives and article 6 contains guarantees which are designed to ensure that they are in a position to do their job. The success of our adversarial system of trial depends on both sides duly performing their respective roles. Of course, a prosecutor must always act as a 'minister of justice' and this means that, when carrying out his duty of prosecuting, the prosecutor must do his best to ensure that the accused receives a fair trial. So the prosecutor must be alert to examine and re-examine the Crown case in the light of known and emerging lines of defence and must disclose any disclosable material of which he is aware or becomes aware while carrying out that duty. Disclosure is simply one aspect of the overall duty to prosecute the case fairly. By contrast, a duty on the prosecutor to set about investigating all the possible lines of defence to the case would be quite different and would go much further - really into defence territory."

These observations apply with equal force to the circumstances of the present case. The Crown was aware that the solicitor knew of the alibi and indeed that the solicitor had taken steps to investigate it prior to its terms being known to the procurator fiscal. The failure of the police to make enquiries of the taxi firm until instructed to do so by the procurator fiscal almost a year later is of no moment in this case. The relevant period is the period between 9 April and 21 April being the date upon which the appellant disclosed his alibi and the date upon which his solicitor wrote to the taxi firm. During that period the records were in existence and the appellant suffered no prejudice by the failure of the police to carry out investigations immediately. In the whole circumstances we are satisfied that the Crown and the police did not fail in their respective duties. In any event any apparent failure on the part of the police in respect of the taxi records did not result in prejudice to the appellant.

[24] The sole remaining issue is whether the failure on the part of the appellant's solicitor to recover the taxi firm's records resulted in an unfair trial. The absence of the taxi records resulted in the inability to identify the taxi driver. We reject the submission that the availability of that witness would necessarily have operated to the advantage of the appellant. His testimony could equally have operated to the appellant's disadvantage. The non-availability of the records is similar to the situation in the case of Sofri & others v Italy 2004 Crim. LR 846. In that case the applicants complained of an alleged breach of Article 6 of the European Convention on Human Rights because of the non-availability to the defence of important pieces of evidence which had been lost or destroyed. In that regard the court observed:

"In the court's view, and as the domestic courts noted on a number of occasions, it is extremely regrettable that items of evidence in a homicide trial should have been destroyed shortly after the suspects were charged. Responsibility for the destruction of the evidence, which was probably due to an administrative mix-up at the Milan court, lies with the Italian authorities.

However, this is not sufficient for the court to find a violation of Article 6 of the Convention. It must also be established that the consequences of the malfunctioning put the applicants at a disadvantage compared to the prosecution (see, among many other authorities, Nideröst-Huber v Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997 - I, pp. 107-108, para. 23; and Fretté v France, No. 36515/97, para. 47, ECHR 2002-I).

...

The Court observes, however, that the public prosecutor's office found itself in a similar situation to the applicants, as the inability to perform forensic tests also prevented the public prosecutor's office from relying on the evidence that had been lost or destroyed. In these circumstances, the parties to the trial were therefore on an equal footing."

The situation in the present case is no different. If the records had been available, the Crown could have investigated the position and adduced the evidence of the driver. His evidence might have been adverse to the appellant or might have been neutral. In any event, evidence was admitted from Mr Laverty concerning his discussions with the owner of the taxi firm as was the evidence from the owner himself who relied upon Mr Laverty's letter. While Mr Laverty's investigation of the case fell short of what might be expected of a solicitor, as he himself acknowledged, we note that the ground of appeal does not extend to the suggestion that there was a miscarriage of justice because of defective representation. Nor do we think that such a ground of appeal could have been maintained. In all the circumstances we are satisfied that there is no merit in this criticism of the appellant's conviction and we reject it.

[25] In summary we are not satisfied that any of the individual allegations, upon which a breach of Article 6 is alleged to have occurred, have been established. Nor do we consider that cumulatively the difficulties identified by the Commission in this case have resulted in an unfair trial or a miscarriage of justice.

(v) No reasonable jury, properly directed, could have returned a verdict of guilty.

[26] This ground of appeal relies upon the Commission's view that it was improbable that the appellant's alibi was a fabrication. Alternatively, it relies upon the inherent weaknesses in the identification evidence given by Pauline Ray. We consider that both of these matters can be assessed together. As we have already recorded, Pauline Ray's evidence of identification of the appellant was supported by her description of the clothing worn by the assailant which matched clothing recovered from the appellant and the knife used by the assailant, which had certain unusual features. The clothing and the knife were recovered from the appellant in the house where he was temporarily resident. Mrs Reid gave supportive evidence and it was not disputed that there was a sufficiency of evidence which would entitle the jury to convict the appellant. The only real issue in this ground of appeal is whether the evidence in support of the alibi was such that no reasonable jury could have failed to entertain a reasonable doubt about the appellant's guilt. When the evidence of the witnesses led in support of the alibi is considered, it is apparent that there are a number of inconsistencies in matters about which one might expect them to agree. In his interview the appellant maintained that he had left Borland's house and phoned for a taxi from a phone box in Morgan Street which was near Baldovan Terrace where Borland lived. In evidence-in-chief Borland said that he telephoned for the taxi. He later changed his evidence-in-chief to say that he thought it was Cheryl, his partner, who telephoned. Whoever made the call, Borland testified that the appellant got the taxi from Borland's house. In cross-examination Borland said that the appellant telephoned for the taxi. Later in cross-examination he could not recall if the appellant or he, Borland, had telephoned for the taxi. Cheryl Jardine could not confirm the date upon which the appellant was in her house. In evidence-in-chief she was asked a leading question whether she recalled the appellant being in her house on 1 April to which she assented. The following question was: "Now, is there anything which allows you to be so sure that it was 1 April?" to which she replied, "No". She was asked various questions including a question about a date in April when her partner had a doctor's appointment to which she replied that she could not remember. She could not remember Mr Kelbie having an involvement with a court case. She could recall an occasion when the appellant was in her house. She was aware of an occasion when he left in a taxi. It is clear that she was referring to an occasion when he left in a taxi from her house. In cross-examination she confirmed that she had not been asked about the events of the date to which she had been referring for many months. It was weeks or months after Christmas before anyone asked her questions about the previous April. In his evidence-in-chief Borland testified that he went to his house in Baldovan Terrace upon arrival in Dundee before going to his solicitor's, a public house in Arbroath Road, a post office, a solicitor's office to return the car keys, a shop to buy a carry out and thereafter returning to his house to drink the carry out with the appellant. In cross-examination he confirmed that the appellant was with him throughout and went with him to his house as soon as they arrived in Dundee. There the appellant had a cup of tea and Borland had a cup of coffee. In contrast Cheryl Jardine said that the appellant came to the flat at 12.30 and was drinking alcohol with her partner. He had not been to the flat earlier that day. Her testimony clearly indicated that she had been in the flat all morning. Thus if she and Borland were each speaking about events of 1 April 2004 there were significant discrepancies. It was also clear from Cheryl Jardine's evidence that the appellant had been in her flat on more than one occasion. The jury would be entitled to conclude that Cheryl Jardine was not speaking about the events of 1 April and that her evidence about the appellant getting a taxi and about her speaking to Pauline Bruce on the telephone, someone with whom she had regular contact, related to a different date. Thus she did not support the alibi for the date libelled. Alternatively if the jury considered that she was referring to 1 April the discrepancies between her evidence and that of her partner were such that the jury would be entitled to reject either or both of them as credible and reliable witnesses. Borland also had two convictions for attempting to pervert the course of justice. Apart from the discrepancies in Pauline Bruce's evidence about timing illustrated by her claiming to have seen police vehicles outside the post office some considerable time prior to the robbery, there was a discrepancy between her evidence and the police statement about the length of time that she waited for the appellant at the garage. In her evidence she was adamant that she waited for twenty minutes whereas in her police statement she said that it had been five minutes. She also testified that the arrangement to collect the appellant from Dundee had been made the previous evening when Borland was present, whereas Borland testified that there had been no such arrangement. According to him there had been no plan made on the Wednesday (31 March). When asked how he thought the appellant was to get back from Dundee, Borland replied, "I thought he would maybe get a lift from Pauline or he would just get the bus back" . The jury had available to them the evidence concerning the taxi records, including the hearsay evidence of Mr Laverty to which no objection was taken. That evidence included a reference to the taxi driver having a conversation with the passenger to the effect that he thought he was collecting a relative, named Costello. We do not agree with the Commission in its assertion that it was improbable that the appellant's alibi was a fabrication. The jury had available to it all the available evidence and was entitled to take the view that it did. Having regard to the convincing evidence implicating the appellant in the crime and the discrepancies in the evidence of alibi witnesses the jury was entitled to reject the alibi and to conclude that the Crown case had been proved beyond reasonable doubt. In the circumstances we reject this ground of appeal.

[27] For the foregoing reasons we are not persuaded that there has been a miscarriage of justice and shall refuse this appeal.