Act: Gilchrist, Q.C.; Ross & Fox, Glasgow (First Appellant)

Act: Moir; Ross Harper, Glasgow (Second Appellant)

Act: McMenamin, Q.C.; Ian McCarry & Co., Glasgow (Third Appellant)

Alt: Grahame, A.D.; Crown Agent

23 October 2007

The background circumstances
[1] The appellants were indicted in a single indictment containing four charges arising out of incidents which occurred on 7 September 2002 in Glasgow. Those charges were in the following terms:

"(1) on 7 September 2002 at Fat Cats Public House, Craigpark, Glasgow, you Francis Donnelly, Senior and Francis Donnelly, Junior did conduct yourselves in a disorderly manner, shout, swear, fight with other patrons of said premises, knock over tables and glasses there and commit a breach of the peace;

(2) on 7 September 2002 at Fat Cats Public House, Craigpark, Duke Street and Sword Street, all Glasgow, you Francis Donnelly, Junior did assault Scott Eardley ..., throw a glass at him and pursue him;

(3) on 7 September 2002 at 180 Thomson Street, Glasgow you Francis Donnelly, Junior and Darryn Donnelly did conduct yourselves in a disorderly manner, shout, throw a piece of wood or similar instrument at a window of a house there, challenge the occupants of said house there to come out and commit a breach of the peace; and

(4) on 7 September 2002 at Duke Street, Glasgow you Francis Donnelly, Senior, Francis Donnelly, Junior and Darryn Donnelly did assault Scott Eardley ..., and did repeatedly strike him on the head and body with a belt and baseball bat and strike him on the body with a knife or similar instrument, all to his severe injury, permanent impairment and to the danger of his life and you did attempt to murder him; and you Francis Donnelly, Junior did previously evince malice and ill-will towards said Scott Eardley."

[2] On 9 February 2004, after trial, the jury, by a majority, found the first named appellant guilty on each of charges (1) and (4); by a majority found the second named appellant guilty on each of charges (1), (3) and (4); unanimously found him not guilty on charge (2); unanimously found the third named appellant guilty on charge (3); and by a majority found him guilty on charge (4). On 5 March 2004 the court admonished the first named appellant on charge (1), admonished the second named appellant on charges (1) and (3), admonished the third named appellant on charge (3); and sentenced each of the appellants to eight years imprisonment on charge (4), said sentences to run from 9 February 2004.

[3] The nature of the events giving rise to the appellants' convictions is described in the Report furnished by the trial judge to this court. The locations of those events were, first, a public house, known as "Fat Cats" in Craigpark, the nearby Duke Street and Sword Street and an address at 180 Thomson Street, also nearby. The appellants, at the material time, lived opposite to the public house. The management of the public house did not allow anyone to display football colours in it. The whole events may have commenced when a person, who was one of the Crown witnesses, displayed a Rangers' top and began to annoy patrons by rubbing out names on the list of those wanting to play pool. However, whatever might have been the cause, the trial judge tells us that the most reliable evidence about what happened next came from Nicola Henderson (Crown witness 3), Margaret Allan, the barmaid (Crown witness 4) and Donald McPedran, the manager (Crown witness 5). Suddenly a fight broke out in which certain persons were involved, including Craig Stewart (Crown witness 2). Tables and chairs were overturned and glasses fell to the floor. The first named appellant was probably involved in trying to break up the trouble. The second named appellant was not present at the start of the trouble and the third named appellant was then elsewhere in Glasgow.

[4] The next event of importance was that the second named appellant, together with some other boys, entered the public house to go to the aid of his father, the first named appellant. In the course of the fracas, the complainer in charge (4), Scott Eardley, struck the second named appellant on the head with a glass, causing injury. He then ran from the public house pursued by the second named appellant and another. CCTV evidence produced at the trial showed this. Scott Eardley went down Craigpark, across Duke Street and down Sword Street. He outran his pursuers and made good his escape. It is likely that some kind of missile was thrown at him, but did not hit the intended target. Later, for reasons which were never proved, Scott Eardley returned to the locus. Why he did so is described as inexplicable.

[5] Meanwhile everyone had been removed from the public house and the police had been called. The first and second named appellants went to the family home, at which the third named appellant subsequently arrived. There was no dispute that all of them were annoyed at what had occurred. Mrs Donnelly, the wife of the first named appellant, treated the head wound sustained by the second named appellant. The trial judge tells us that what happened after that was unclear, as it was witnessed by persons who were reluctant to give evidence and who had to adopt prior statements, in whole or in part. The appellants were all seen to have come out of their home and wait together in the street. The first named appellant was seen with a baseball bat, or stick. The second named appellant had a metal object and at some point the third named appellant was seen swinging a belt. He had earlier got into a taxi to leave, but decided to stay when it looked as if there were going to be further trouble.

[6] The evidence of subsequent events came from a number of unsatisfactory witnesses. However, the trial judge tells us that, before dealing with the final near-fatal events of charge (4), it was important to notice what the jury had before them on charge (3). After the public house had been cleared, Nicola Henderson and Craig Stewart had gone to a house in nearby Thomson Street. A voice had been heard in the street saying, "Who split my brother's head open?" Something had been thrown at and hit a window. Brian Lennox (Crown witness 7) had seen a boy with a cut head and a boy waving a belt go into Thomson Street. He had heard a challenge to "come down" and had seen something being thrown at a window. Further evidence on this charge had come from a statement of a witness Brown, which had implicated the third named appellant. This had been dealt with in the evidence of DC Cochrane (Crown witness 23), who had spoken to label 4 and production 20. The third named appellant, in his interview with the police, production 12, at pages 7 and 13, had admitted that he had received a telephone call from his parents, as a result of which he had come to see what had been happening.

[7] Turning to deal with the circumstances focused in charge (4) in particular, the trial judge has drawn attention to the timing of the relevant sequence of events, based upon CCTV evidence. Scott Eardley had run from the public house pursued by the second named appellant and another at 10.47pm. At 11.26pm, he and Craig Stewart had been seen to run across Sword Street to where the appellants were standing. The near-fatal encounter, to which charge (4) related, occurred at 11.27pm. Scott Eardley had then been seen to back away. He had been seen to fight with all of the appellants and, at one point, was pinned against a shutter. Soon after, he was found by Nicola Henderson in Thomson Street, bleeding from a chest wound. He was taken to the Royal Infirmary in Glasgow. He had been stabbed through the heart, the wound penetrating 8cms through both sides of the heart, front to back. The injury was neat and incised, consistent with having been inflicted by a knife. As a result of blood loss and lack of circulation, although he had survived, he had suffered permanent brain damage.

[8] The trial judge observes that most of the evidence about the events to which charge (4) relates came from witnesses who were not entirely satisfactory, one of whom, Brown, did not appear and the others of whom all gave evidence partly from memory and partly on the basis of prior statements. They were Craig Stewart, Nicola Henderson, John Ballantyne, Francis O'Rourke, Gary O'Rourke, Brian Lennox and Christopher Cairns. The prior statements were all properly proved by the police witnesses. The various Crown witnesses did agree with and adopt much of what they had said to the police and it was, in the view of the trial judge, open to the jury to conclude that it incriminated the three appellants on this charge.

[9] The trial judge summarises the evidence which they gave in this way. The appellants had been angry at what had happened in the public house and had armed themselves to look for or await the return of Scott Eardley. Two of them had gone to Thomson Street to seek him out and challenge him to fight. They were prepared to seek vengeance. The jury were entitled, in the view of the trial judge, to conclude that the appellants had been involved in planned concerted activity, however briefly, not merely spontaneous concerted activity. The evidence relating to weapons was of importance in that context.

[10] The trial judge tells us that a number of witnesses described the first named appellant as having and using a baseball bat. The first named appellant, in his own evidence, said that his weapon was a part of a pool cue. He had testified that he had hit Scott Eardley twice, but there was other evidence describing five blows with the baseball bat. The sound of a "clunk" was described as it made contact with the victim. The weapon was highly visible. The second named appellant had wielded what was described as a spring cosh. The third named appellant had known that his brother had had a cosh, as he indicated in his police interview (production 12, pages 25 to 26). He had also known that the first named appellant had had a weapon. The third named appellant was proved to have swung a belt and hit the victim. The belt was label 9. It had a large buckle with a badge showing the word Milano. It was described as having "... a big fuck off buckle".

[11] The trial judge considered that the jury had been almost bound to infer that the weapon causing the near-fatal injury was a knife. That had been the conclusion of the surgeon who treated Scott Eardley. No knife was ever found. Witnesses described how all three of the appellants had attacked Scott Eardley in a fight which was quickly over; one of them must have had and have used a knife.

[12] The jury had also heard evidence of shouts and gestures made before the fight, apart from what was heard in or near to the events in Thomson Street. The witness Lennox had seen Scott Eardley and Craig Stewart approach the appellants and had described how the first named appellant had beckoned them on, inviting a fight. One of the appellants had been heard by Gary O'Rourke to shout, "Come on". The witness Lennox had heard the third named appellant shout, "Let's go for it". The witness Brown had heard the second named appellant shout, "Come on along ya shite bag". The trial judge considered that evidence important. A further remark "You are dead" had been heard by Francis O'Rourke, but had not been uttered by any of the appellants. It had been uttered just as the fight began, probably by Mrs Donnelly, the wife of the first named appellant. The trial judge observes that the Crown had relied upon it in the speech of the Advocate depute, but, in his opinion, they had been wrong to do so. In order to correct that, the trial judge had told the jury that that evidence was not evidence against any of the appellants.

The grounds of appeal
[13] Each of the appellants has tabled grounds of appeal in elaborate terms. The first named appellant's grounds of appeal are in three parts. They may be summarised thus. First, it is contended that the trial judge erred in repelling a submission, made on behalf of this appellant at the conclusion of the evidence, to the effect that there was insufficient evidence to permit the jury to consider finding the appellant guilty on charge (4) with the inclusion of the words "and strike him on the body with a knife or similar instrument, all to his severe injury, permanent impairment and to the danger of his life and you did attempt to murder him." It is contended that there was no evidence to the effect that this appellant used a knife upon the complainer, Scott Eardley. Nor was there evidence from which it could reasonably be inferred that he was a party to a common criminal purpose that included the use of a knife.

[14] Secondly, on behalf of this appellant, it is submitted that the trial judge misdirected the jury in relation to the approach to be taken on the question of determining the extent of the common criminal purpose. It is submitted that, as a result, the jury may have misunderstood whether it was essential for a conviction for aggravated assault, or attempted murder, that each participant in the common criminal plan knew that a knife was likely to be used, or whether it was enough that each participant had been in possession of an article that could be described as a "lethal weapon". Detailed references are made to and criticisms made of the trial judge's directions in this regard.

[15] Thirdly, it is contended that the trial judge misdirected the jury as to the use that they could make of the comment "You are dead", allegedly uttered by the wife of the first named appellant immediately before the fight began. The Advocate depute had argued that this comment could be taken into account in assessing whether the common criminal purpose was murderous. It was contended on behalf of this appellant that the comment could not be taken into account at all by the jury. Detailed criticisms are then made of what the trial judge did say about this aspect of the case.

[16] The second named appellant also has tabled grounds of appeal containing three parts. First, it is contended that the trial judge erred in repelling a submission made on behalf of this appellant at the end of the evidence. In particular, the same point, in this regard, is made by this appellant as is made by the first named appellant. It is contended that there was no evidence that this appellant either had a knife, or similar instrument, used a knife, or similar instrument, or had knowledge or grounds to suspect that a knife or similar instrument would be used by another. It is contended that there was no evidence from which it could reasonably be inferred that he had been party to a common criminal purpose with the scope of attempt to murder, either with or without a knife. A further subsidiary point, in this connection, is that the Crown had relied heavily upon the evidence of Francis O'Rourke and, in particular, on the adoption by him of his police statement. It is said that the trial judge erred in holding that Francis O'Rourke had adopted evidentially important material in that statement.

[17] Secondly, it is contended that the trial judge misdirected the jury in relation to the approach that they required to take to determine the extent of the common criminal purpose. The directions given may have led to the jury misunderstanding whether it was essential that each participant in the common criminal purpose had known that a knife was likely to be used, or whether it was enough that each of the participants had had an article which could be described as a lethal weapon. Detailed criticisms are made of what the trial judge said in this regard.

[18] Thirdly, it is contended that the trial judge misdirected the jury in relation to the use of the words "You are dead", alleged to have been said by the wife of the first named appellant. It is contended that the directions given by the trial judge on this issue may have caused confusion as to what use the jury could make of the words quoted.

[19] The third named appellant likewise raises three matters in his grounds of appeal. First, he contends that the trial judge erred in repelling the submission made on behalf of this appellant at the conclusion of the evidence. This contention is similar to those advanced on behalf of the first and second named appellants.

[20] Secondly, it is contended that the trial judge misdirected the jury in relation to the approach to be taken to the question of determining the extent of the common criminal purpose. This criticism is couched in terms substantially similar to those used by the first and second named appellants in this connection. In support of this contention detailed criticisms are made of the language used by the trial judge.

[21] Thirdly, this appellant contends that the trial judge misdirected the jury as to the use that they could make of the comment "You are dead". The point made is similar to that made on behalf of the first and second named appellants.

Submissions
[22] The submissions made on behalf of the appellants and the Crown ranged widely and at length over all of the points focused in the grounds of appeal. In view of the conclusion which I have reached in relation to certain of the contentions advanced by all of the appellants, I find it unnecessary to summarise the whole of the submissions made. I intend to confine myself to a summary of the submissions, in so far as they related to the third part of all of the grounds of appeal, that is to say, the contention that the trial judge misdirected the jury as to the use that they could make of the comment "You are dead", allegedly uttered by the wife of the first name appellant before the fight, to which charge (4) related, commenced. As the submissions before us developed, this aspect of the case was dealt with in detail by counsel for the second named appellant.

[23] Counsel for the second named appellant drew our attention to the treatment of this part of the evidence by the trial judge at pages 47 and 48 of the transcript of his charge to the jury. The submission was that what was there said amounted to a misdirection. The trial judge's remarks would have left the jury in doubt as to what use they were entitled to make of the evidence concerning the remark "You are dead". It had to be borne in mind that the evidence concerning this remark from Francis O'Rourke took the form of the adoption of a statement made to the police. No objection had been taken to the admission of that evidence. In these circumstances, it had to be supposed that the remark could properly be treated as part of the res gestae. The trial judge, at page 48 lines 17 to 21 of the transcript, had told the jury that the remark was not evidence against any of the accused. However, at an earlier stage, at page 48 lines 7 to 11, he had said that it was evidence of "the surrounding circumstances", if it were proved to have been said at all. However, it was important to note that the Crown speech to the jury had relied heavily upon this remark; the Advocate depute had said that it was indicative of a pre-planned stabbing attack and that the jury were entitled to draw that inference from it. However, if it were proved at all, the remark had emanated from Mrs Donnelly, who had not been charged with any offence. The remark could not properly give rise to an inference of a pre-planned common criminal purpose with murderous scope. The trial judge had appeared to appreciate that, in view of the passage in which he had directed the jury that the remark was not evidence against any of the accused. Yet he had not said sufficient to dispel doubt from their mind, having regard to the speech addressed to them by the Advocate depute at the trial. Clear direction should have been given to the jury concerning the very limited significance, if any, of this evidence. That had not been done. The jury might well have thought that the remark was capable of showing that a common criminal purpose, with murderous scope, had been formed in the Donnellys' house prior to the incident. The trial judge should have directed the jury specifically that that was not a legitimate use of the remark.

[24] Senior counsel for the third named appellant adopted the submissions just summarised of the second named appellant, on this aspect of the case. Such directions as the trial judge had given on this matter were insufficiently clear. The matter was one of critical importance, in the light of the nature of the Crown's speech to the jury. Thus, a miscarriage of justice had occurred. The third named appellant had tabled a plea of self-defence at the trial. That plea could not have prevailed against a Crown case to the effect that he was a participant in a common criminal purpose, which had been pre-planned, with murderous scope. However, it was, at least, arguable that it might have prevailed against a case supportive of charge (4), without the inclusion of the aggravations previously referred to. The practical effect of that was that if the court were satisfied that there had been misdirection of the jury in relation to the remark concerned, the conviction on charge (4) against this appellant ought to be quashed in total. So far as the other appellants were concerned, it would be sufficient if their convictions on this charge were quashed, but only to the extent of the deletion of the words coming after "baseball bat", in line 40 of the indictment.

[25] In response to these submissions, the Advocate depute accepted that the evidence concerning the words would have been inadmissible unless the words themselves could have been regarded as part of the res gestae. The trial judge had been entitled to leave the evidence about the remark to the jury for their consideration, with the direction that he had given concerning the use of that material. In particular, the remark of Mrs Donnelly could have been used to "add colour to the mood and intention of the appellants". In other words, the remark was available to the jury for whatever reasonable inference they wished to make from it. The Crown's position was that the direction given at lines 18 to 21 on page 48 of the transcript of the charge was not correct, but it was in fact couched in terms which were favourable to the appellants. Accordingly no miscarriage of justice could have occurred. It was accepted that there appeared to be some level of inconsistency between the two passages relating to the remark on page 48 of the transcripts. However, if the jury had been confused about this matter, they might have reasonably been expected to seek clarification upon it, yet they did not do so. In any event, they may have simply discarded the evidence of Francis O'Rourke and disregarded the remark completely. If that were so, there could have been no miscarriage of justice. Likewise, if they had followed what was said on page 48 lines 17 to 21 of the transcript of the charge, there would have been no miscarriage of justice. On the other hand, if they had had regard to the remark and treated it as part of the surrounding circumstances, as they were entitled to do, there would have been a miscarriage of justice.

Further procedure
[26] In the light of the submissions heard, part of which I have just summarised, we decided that it was necessary, before reaching a decision upon them, to have a transcript of the Advocate depute's speech to the jury at the trial. For that purpose the hearing of these appeals was adjourned. Following that adjournment the hearing was resumed, when further submissions were made, particularly in relation to the Crown's speech to the jury at the trial.

Further submissions
[27] Senior counsel for the third named appellant drew our attention to a series of passages in the transcript of the Advocate depute's speech to the jury. In particular, reference was made to pages 46 to 59. It was clear that the Advocate depute was arguing for a pre-planned common criminal purpose and that the remark of Mrs Donnelly "You are dead" was treated as an indication of that purpose and of what was likely to happen in the execution of it. The short duration of the attack and its juxtaposition in time with the uttering of the remark were treated as supportive of such a pre-planned purpose. At pages 48 and 49, the Advocate depute was explicit in contending that the remark was indicative of a pre-planned intention to inflict the stab wound that was in fact inflicted. The suggestion was made at page 55 that Mrs Donnelly had known what was going to happen. Between pages 46 and 59 of the transcript of the speech there were no fewer than seven references to Mrs Donnelly's alleged remark. It was contended on behalf of the Crown that each of the appellants knew of the intended use of a knife. However, in connection with the common law submission made on 5 February 2004 in relation to charge (4), it had been contended by counsel for the first named appellant that the use of the remark of Mrs Donnelly for that purpose was improper.

[28] Looking at the charge to the jury, at pages 47 to 48, there was no proper direction relating to the connotations of the remark; the trial judge's directions were mutually inconsistent. The fact was that prior concert involving a scope of a murderous nature, through the intended use of a knife, should not have been left to the jury. The common law submission should have been sustained. At pages 54 to 59 of the transcript of the trial judge's charge, the matter of concert was discussed. At page 58, he appeared to leave the jury to consider whether the concert involved in the case was prior or spontaneous. At page 61 of the charge the trial judge seemed to say that the jury had to hold it proved that each accused actually knew that a lethal weapon would be used, that was to say the knife in this case. That direction highlighted the importance of the remark attributed to Mrs Donnelly. In all the circumstances the directions given to the jury were inadequate, as a result of which a miscarriage of justice had occurred. Counsel for the first and second named appellants adopted the submission of senior counsel for the third named appellant.

[29] The Advocate depute referred to the submissions made at the previous hearing. She contended that the whole circumstances had to be looked at in relation to the matter of concert. Looking at the Advocate depute's speech to the jury, it was not the case that he had rested his whole case on concert on the reported remark of Mrs Donnelly. Reference had been made at page 44 to the weapons that had been in clear view. The Crown's position at the trial had been that there was prior concert, revenge being taken for the assault in the public house. So far as the remark "You are dead" was concerned, that was part of the res gestae, but, at page 48 line 19 the trial judge had directed the jury that they could not use the remark against the appellants. Accordingly, the murderous scope of the concert had to be based on the use of the weapons concerned, the baseball bat, the cosh and the belt. The scope of the concert was murderous, even though the participants may not have known that one of their number had possession of and intended to use a knife. The verdicts could and should be supported upon the basis that concert with murderous scope could be inferred from an attack involving the weapons just mentioned.

The conclusion
[30] It is quite evident from the transcript of the speech of the Advocate depute to the jury in this case that the remark "You are dead" attributed to Mrs Donnelly in the evidence of Francis O'Rourke featured very prominently in the Crown case, as it was then presented, although it was not contended to be the exclusive basis of that case in relation to concert. The evidence of the remark had been led without objection, presumably upon the basis that it was part of the res gestae. Be that as it may, I agree with the submission of the Advocate depute made to us that, on a proper construction of it, the remark could not give rise to an inference of prior concert, with murderous scope, developed in the Donnellys' flat before to the commission of the offence to which charge (4) relates. I presume that that is why the trial judge, at page 48 lines 17 to 21 of the transcript of the charge, taking a similar view, said:

"Even if you hold it proved that she did say this, I direct you in law that it is not evidence against any of the accused: so you have to view it, if you hold it established at all, in that way."

However, at lines 8 to 11 on the same page, the trial judge said:

"But, ladies and gentlemen, that piece of evidence, that detail of evidence, is only evidence of the surrounding circumstances if you hold it proved it was said at all."

Unfortunately I am unable to conclude exactly what the trial judge intended to convey in that particular part of his charge. I consider that the jury may well have been similarly uncertain as to the status of the remark in question. As I see it, the only sound basis for the Crown's case on concert would have been that spontaneous concert could have been inferred, with murderous scope, from the plain and acknowledged use of the weapons referred to in evidence, the baseball bat, the cosh and the belt, by the appellants. Standing the emphasis placed by the Advocate depute at the trial on the remark in question, as indicating prior concert with murderous scope, I have concluded that there was a particular obligation upon the trial judge, in the circumstances of this case, to give clear directions to the jury to the effect that the remark attributed to Mrs Donnelly could not be used as a basis for an inference of prior concert with murderous scope; and that the only basis for conviction on charge (4), in its entirety, was that each accused had been in possession of and had used weapons, just mentioned, from which the murderous scope of the concert might be inferred, but that the possession by one of the accused of the knife which actually inflicted the near-fatal injury could not be so used.

[31] Having carefully considered the whole terms of the trial judge's direction to the jury on concert in this case, I have concluded that his directions were not adequate in these particular circumstances. The passages on page 48, which I have quoted, in my opinion, are prone to create uncertainty, or even confusion. Furthermore, at page 61 of the transcript of the charge, there is a passage which adds to the difficulty, where the trial judge said this:

"You have got to hold it proved - and this is very important - that each accused actually knew that a lethal weapon would be used; that is to say the knife in this case. Such proof may be direct, or you may infer it. And in relation to the offence, assuming you hold the offence to be the case, where it cannot be affirmed which accused used the knife, it is essential to a verdict against one of them or all of them that you the jury find that they were acting in concert to attempt murder."

In that passage, the trial judge appears to lay emphasis upon actual knowledge of the weapon that caused the grave injuries in this case, the knife. There was no evidence attributing such knowledge to any particular accused, let alone all of them. That direction was inconsistent with what I consider was the only sound basis upon which the Crown's case on concert could have been properly presented, that is to say the open use by the appellants of the weapons mentioned. In all the circumstances, I have concluded that the jury were not given adequate and clear directions either relating to the remark attributed to Mrs Donnelly, or to the only proper basis on which convictions based on concert could be reached, with the result that the jury were left in doubt and confusion as to how they should approach the essential matter of concert. I am further of the opinion that this shortcoming in the charge to the jury must be seen as productive of a miscarriage of justice. It is quite impossible to reach a conclusion as to what course the jury might have taken had clear and sound directions been given to them on these matters.

[32] Accordingly I move your Lordships to quash the conviction of the third named appellant on charge (4) in total, in view of the point made by senior counsel for him relating to the matter of self-defence. The sentence passed on that conviction should also be quashed. In relation to the convictions of the first and second named appellants on charge (4), I move your Lordships to quash those convictions, but only to the extent of the deletion of the words:

"and strike him on the body with a knife or similar instrument, all to his severe injury, permanent impairment and to the danger of his life and you did attempt to murder him; and you Francis Donnelly, Junior did previously evince malice and ill-will towards said Scott Eardley."

The sentences passed on those appellants in respect of their convictions on charge (4) will also require to be quashed. If that course is followed, it will be necessary for their appeals to be continued for the purpose of this court selecting an appropriate sentence to be imposed in respect of their convictions on charge (4), as subject to the foregoing deletion.

Act: Gilchrist, Q.C.; Ross & Fox, Glasgow (First Appellant)

Act: Moir; Ross Harper, Glasgow (Second Appellant)

Act: McMenamin, Q.C.; Ian McCarry & Co., Glasgow (Third Appellant)

Alt: Grahame, A.D.; Crown Agent

23 October 2007

[33] I agree that the appeals should be allowed to the extent indicated by your Lordship in the chair.

[34] I agree that there was a miscarriage of justice by reason of the inadequacy of the directions given by the trial judge. There was in the circumstances of the case need for particularly clear directions on the question of concert and on the use that could be made in that context of the evidence of the remark "You are dead" attributed by the witness Francis O'Rourke to Mrs Donnelly. That need was made all the greater by the emphasis which the trial Advocate depute placed on that remark in his submissions to the jury, and his contention that it supported the inference that there was among the appellants prior concert of murderous scope.

[35] If the jury accepted that the remark "You are dead" was indeed made by Mrs Donnelly, I am of opinion that the remark fell to be regarded as part of the res gestae. However, it seems to me that it was essential for the jury, if they accepted that the remark was made, then to consider what meaning they could properly attribute to it. It is, to my mind, by no means evident that it was intended to convey, or would have been understood by those present as conveying, anything more than a general expression of hostility. As ordinarily used, I doubt whether it is a phrase that is understood to express a serious intent to kill. What is more important, however, in my opinion, is that it is not capable, as part of the res gestae, of supporting the inference that the appellants in particular had formed a common criminal purpose to carry out a murderous attack on the complainer. It was therefore, in my view, incumbent on the trial judge to give directions which drew attention to the need to consider what the words attributed to Mrs Donnelly really meant, and pointed out that they could not be treated as supporting prior murderous concert on the part of the appellants.

[36] Your Lordship in the chair has quoted the directions given by the trial judge at page 48, lines 8 to 11 and 17 to 21 of the transcript of his charge. It may well be that these directions were intended to convey to the jury that the words attributed to Mrs Donnelly could not be treated as evidence of prior murderous concert on the part of the appellants, but if so, I do not consider that they had the clarity demanded by the importance of the issue of concert and the way in which the Advocate depute had presented the Crown case. It is not, in my view, possible to know whether the jury so understood what was said, or how, if they did, they approached the question of concert. The lack of sufficiently clear directions on that critical point amounted in my view to misdirection, which must be regarded as having resulted in a miscarriage of justice.

Act: Gilchrist, Q.C.; Ross & Fox, Glasgow (First Appellant)

Act: Moir; Ross Harper, Glasgow (Second Appellant)

Act: McMenamin, Q.C.; Ian McCarry & Co., Glasgow (Third Appellant)

Alt: Grahame, A.D.; Crown Agent

23 October 2007

[37] I agree with your Lordships that these appeals must be allowed to the extent indicated by your Lordship in the chair.

[38] In saying that, I recognise, in common with your Lordships, that there may be a question whether the words, "You are dead", were on any view capable of carrying the inference contended for by the trial Advocate depute, viz. as evidencing an earlier agreement on the part of the three accused in the presence of Mrs Donnelly that a knife would be used to kill or seriously injure the complainer. Nonetheless, I prefer to reserve my opinion on that particular aspect for the reason, not least, that we did not have the advantage of any considered argument on that matter in the course of the hearing which took place before us. Instead, I prefer to rest my own opinion on the view that these words, as so construed, would have been in the nature of a statement or report by Mrs Donnelly about something that had happened earlier in the evening and, as such, could not possibly have been regarded as forming part of the res gestae in the first instance. Of course, if the words were to be construed differently by the jury as reflecting no more than a spontaneous utterance reflecting the mood of the moment and the perceived nature of the fight taking place they could have been so regarded; but that, as your Lordships have made clear, was emphatically not the approach in the end taken by the Advocate depute in his speech to the jury.

[39] The distinction I have drawn is obviously an important one and in the circumstances I am of opinion that very clear directions were required to the effect that the Crown case of prior concert, at least so far as based on these words, was simply not open for consideration by the jury. In the event, as your Lordship in the chair has pointed out, the directions given by the trial judge on this matter were far from clear and, on the contrary, left open the possibility of using the words as evidence of "surrounding circumstances" without offering further guidance as to what that meant. I agree with your Lordships that this lack of clarity must in the circumstances be seen as productive of a miscarriage of justice.