| APPEAL COURT, HIGH COURT OF JUSTICIARY |
Lord Eassie Lady Paton Lord Bannatyne | [2010] HCJAC 27 XC997/03 OPINION OF THE COURT delivered by LORD EASSIE in Appeal by WILLIAM FREDERICK IAN BEGGS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, C. M. Mitchell, C. Thomson; McClure Collins
Alt: Mulholland Q.C., Solicitor General, Balfour; Crown Agent
9 March 2010
[1] On 12 October 2001 at a sitting of the High Court of Justiciary in Edinburgh the appellant was convicted of the murder of Barry George Wallace in December 1999. The terms of the charge of which the appellant was found guilty by the jury were as follows:
"on 5 or 6 December 1999 at 2B Doon Place, Bellfield, Kilmarnock you did assault Barry George Wallace, 38 Cumbrae Drive, Kilmarnock, place handcuffs on his arms and legs, struggle with him, punch him on the face, restrain him, puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member, all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in Loch Lomond, Stirlingshire, and in the sea at Barassie, Troon, Ayrshire."
The appeal process
[2] Given the time which has flowed since the appellant's conviction, it is appropriate to say something of the steps which have occurred in this regrettably protracted appeal process.
[3] In brief, on 2 July 2002 the appellant lodged a note of appeal. Following the obtaining from the trial judge of the requisite report, the matter was in due course considered by a single judge who, on 20 December 2002, granted leave to appeal but only as respects certain grounds, which the single judge sought to identify by the exclusion of certain paragraphs of the rather lengthy and discursive note of appeal. The appellant then required the application for leave to be considered, as respects the excluded paragraphs, by a triumvirate "second sift" bench. That bench refused to grant leave for any of the excluded grounds. The appellant thereafter brought a petition to the nobile officium of the High Court of Justiciary challenging that second sift decision. The decision in that petition - issued on 8 December 2004 - identified that where an applicant for leave to appeal is dissatisfied with a decision of a single judge allowing some, but refusing other, grounds of appeal to be argued the correct procedure to be followed is an application under Section 107(8) of the Criminal Procedure (Scotland) Act 1995 and that the further application to the "second sift" followed in the present case, albeit no doubt common practice at the time - was incompetent. The decision is reported as Beggs petitioner 2005 JC 174; 2005 SCCR 47.
[4] Following that decision, the appellant duly lodged an application in terms of Section 107(8) of the 1995 Act, which was heard on 28 October 2005 and in consequence of which the court, on 25 November 2005, granted leave to argue certain additional grounds. The decision - [2005] HCJAC 131 - is reported at 2006 SCCR 25. The court then invited the submission of reformulated grounds of appeal framed in light of the initial sift decision and its decision of 25 November 2005 and such reformulated grounds of appeal were duly lodged with the court on 16 January 2006. With the exception of an additional ground of appeal tendered only at the opening of the hearing before us, to which we shall subsequently refer - those reformulated terms are the grounds of appeal which form the basis of this appeal. The formal interlocutor allowing those reformulated grounds of appeal to be the grounds of appeal was pronounced on 11 July 2006.
[5] Notwithstanding that the grounds of appeal had thus eventually been reformulated and settled and allowed to be argued in July 2006, those acting for the appellant then embarked upon a lengthy process of seeking various orders for disclosure of documents and information from the Crown. It would not be profitable to recount the details of this exercise. It suffices to say that the insistence of those acting for the appellant in that exercise has, so far as it is possible to tell, had little significant result but it has substantially delayed the hearing of this appeal. Only on 6 May 2009 did counsel for the appellant withdraw his applications for orders for disclosure and for recovery of documents, thus enabling a hearing of the appeal to be fixed. At a cost no doubt to the progress of the cases of other appellants, the court was able to arrange for the appeal to be heard over eight days in mid-October 2009.
The factual background and the circumstances of the case
[6] On the evening of Saturday 4 December 1999, the deceased, Barry George Wallace, who was then aged 18 years, and was employed in a supermarket in Kilmarnock, attended a Christmas function for employees of the supermarket in an hotel in Loudoun Road, Kilmarnock. By all accounts he consumed a great deal of alcoholic drink. He left the hotel shortly after 0100 hours on Sunday 5 December 1999 and set off on foot towards the town centre of Kilmarnock. He was seen to be staggering and to fall in his drunken state. He was given a lift in a motorcar to the town centre by others who had attended the Christmas party and was dropped off in the town centre, near the shop premises occupied by Marks & Spencer Plc. Barry Wallace was then involved in an altercation with a friend, Graham Boax, resulting in some form of exchange of punches to the detail of which we shall have to revert but the two youths made up and apparently shook hands. Shortly thereafter Barry Wallace was observed at the entrance to a nightclub called "Expo" at about 0130 hours on Sunday 5 December. That was the last sighting of him by any of the witnesses at the trial. He did not return home and did not turn up for work on Monday 6 December 1999. He was then reported to the police as a missing person.
[7] As it happened, on the morning of Monday 6 December 1999 a number of police officers from an underwater search unit from Central Scotland Police were engaged in a training exercise involving diving in the waters of Loch Lomond near Rowardennan Pier. Operations began between 1000 and 1030 hours. In the course of the exercise, one of the members of the underwater search unit came across two plastic bin liner bags submerged in the water. One bag contained a human hand and associated part of the arm; the other a human foot and associated part of the leg. These discoveries prompted further searches of Loch Lomond. On Tuesday 7 December 1999 part of an arm, with hand attached, was found; and on the following day, Wednesday 8 December 1999, part of a human leg and thigh was discovered, again in the area of the pier at Rowardennan. On Friday 10 December 1999 searches conducted in the water in the area of the pier at Balmaha resulted in a recovery of part of a lower leg with the foot attached. On Wednesday 15 December 1999, as a result of the interest in it shown by her dog, a member of the public reported the finding of a human head, partially contained in a plastic shopping bag, which appeared to have been washed up by the sea on the beach at Barassie, near Troon. Roughly three weeks later, namely on 8 January 2000, as a result of further searches in the waters of Loch Lomond, a human torso was recovered in Manse Bay, some 1.5 miles distance from Balmaha.
[8] Scientific examination of the body parts, using DNA techniques, demonstrated that they were all parts of the body of Barry Wallace. Post mortem examination revealed certain pre-mortem injuries, including bruising to, and fractures of, the underlying bones of the face; areas of extensive bruising around the anus and in the rectal mucosa; linear marks on the wrists and ankles consistent with these having been caused by the application of handcuffs; and a puncture mark on one of the arms, consistent with that having been inflicted by a needle. But the pathologists were unable on the basis of the autopsy findings to determine any definite cause of death.
[9] On the basis of certain information conveyed to him by the police (to which we shall revert), on 16 December 1999 the procurator fiscal in Kilmarnock sought and obtained from the sheriff a search warrant and pursuant thereto on the following day, 17 December 1999, the police conducted a search of a dwelling tenanted by the appellant at 2B Doon Place, Bellfield, Kilmarnock. In the course of that search, a number of matters of significance were discovered. Among these were quantities of blood which were shown to have come from the now deceased. It was apparent from the findings of the search that part of the decorative fabrics in the apartment had recently been replaced. Carpets had also been removed and replaced. It appeared that the polythene bag in which the head of the deceased had been found was of a type similar to polythene bags which were found in the dwellinghouse of the appellant, the bags being of a distinctive design, being, as we were informed, that of the DFDS ferry line.
[10] At the trial, evidence was led of the appellant's movements both in the days immediately after 5 December 1999 and after the search of his flat in Kilmarnock. In short, the appellant, who was employed in a post in Edinburgh, did not attend for work on Monday 6 December 1999. On Tuesday 7 December 1999 having attended work for a short time before leaving complaining of sickness, the appellant went by ferry from Troon to Northern Ireland (whence he originated and where members of his family resided). There was some evidence led at the trial regarding tidal movements in the Firth of Clyde supportive of the possibility of those movements carrying an article, jettisoned as the ferry left Troon towards Northern Ireland, to the Barassie beach. On 10 December 1999 the appellant returned to Scotland via Stranraer, but travelled back to Belfast the following day, again via Stranraer. On 12 December he returned to Scotland via Troon. The appellant returned to work in Edinburgh on Monday 13 December 1999 and attended his work place up to and including 17 December 1999. He did not return to work after that date, being the date upon which his flat in Kilmarnock was searched by the police. There was apparently evidence that the fact of the search having been made on that date was a matter of broadcast on at least Radio Scotland. The evidence for the Crown demonstrated that on the evening of 17 December 1999 the appellant drove to Luton Airport in England; thereafter purchased a ticket for a flight to the Channel Islands, obtained under the name of "William Frederick"; and that from the Channel Islands he immediately made his way by the purchase of a further ticket to the airport in Dinard in France. Thence he proceeded to the Netherlands.
[11] On 21 December 1999, the procurator fiscal at Kilmarnock sought and obtained a petition warrant for the appellant's arrest. On 28 December 1999 the appellant, accompanied by a Dutch lawyer, surrendered himself to the Netherlands police in Amsterdam and was remanded in custody by a court in Amsterdam on 29 December 1999.
[12] As a next step, on 10 January 2000, the Scottish authorities applied for the appellant's extradition from the Netherlands to Scotland. In response to that application the relevant Dutch court in Amsterdam approved the extradition of the appellant on a partial basis (to the nature and consequences of which partial allowance we shall require to return). The appellant made a further appeal in the Netherlands but this was refused on 26 September 2000. In light of those judicial decisions, on 14 October 2000 the Netherlands' Minister of Justice authorised extradition and a review of this order was refused on 5 January 2001, with the consequence that the appellant was returned to Scotland on 9 January 2001. He appeared before the sheriff at Kilmarnock on the next day and was fully committed on 17 January 2001. He was subsequently served on 14 March 2001 with the indictment on which he was eventually tried.
Pre-trial proceedings
[13] Following service of the indictment the appellant presented two pre-trial minutes. In the first he sought a finding that the Lord Advocate had no power to proceed with the prosecution against him, the basis for claiming such lack of power being that the nature and extent of the media publicity given to the case and to the appellant was of such a nature that it was impossible for the appellant to receive a fair trial. The second minute flowed from the refusal of the Dutch authorities to authorise extradition on a specific charge advanced to them as part of the extradition application, namely a further charge of an attempt to pervert the course of justice by dismembering the body of the deceased. The second minute contended that the averment in the charge of murder of subsequent dismemberment therefore offended against the rule of specialty which applied in extradition law, that rule prohibiting the prosecution of an extradited person on any offence other than that, or those, upon which extradition had been allowed.
[14] Both minutes were argued before Lord Wheatley and were refused by him on 29 June 2001. Leave to appeal was granted by Lord Wheatley who subsequently delivered a written opinion which is reported at 2001 SCCR 836, as part of the report of the appellate proceedings which ensued from his decision. In its decision in those proceedings, the appellate bench reviewed the nature and detail of the pre-trial publicity but declined to uphold the contention that by virtue of that pre-trial publicity, a fair trial would not be possible. It thus reached a conclusion adverse to the contentions of the appellant. As respects the second minute which concerned the extradition law issues, we think it sufficient simply to quote paragraph 33 of the Appeal Court's decision:
"As we have mentioned, the judge dealt with a separate minute in relation to what has been described as the extradition issue. The argument on this aspect occupied only a short time before us. We think that it can be fairly said that the argument added nothing to the considerations which were before the judge. Having read his opinion we are satisfied with the way in which he dealt with those arguments and with the conclusion which he reached."
That pre-trial appellate decision in respect of both minutes having been delivered on 17 August 2001, the trial thus proceeded to a commencement on 14 September 2001.
The grounds of appeal
[15] The various grounds of appeal were advanced by counsel for the appellant in his oral argument in a different order from that in which they were set out in the reformulated grounds of appeal and in responding the Solicitor General followed that different order. For our part we shall also adopt that ordering of the grounds of appeal; and for convenience we catalogue by Roman numeral the grounds of appeal in the order in which they were argued, with a brief keyword phrase, or other indication of the topic and, in a final parenthesis, the original number in the reformulated grounds:
(I) Publicity issues (ground 2);
(II) Petrie hearsay evidence (ground 4);
(III) Advocate depute's conduct (ground 6);
(IV) Search warrant (ground 3);
(V) Sufficiency of evidence (ground 8);
(VI) Admissibility of evidence of travel to the Netherlands (ground 5);
(VII) Specialty (ground 1);
(VIII) Jury trial compatibility with ECHR (ground 7);
(IX) Disclosure of police statement of Irene Callaghan (additional ground)
(I) - PUBLICITY ISSUES
Introductory
[16] The ground of appeal pertinent to this chapter of the case is couched in these terms:
"The Appellant did not receive a fair trial as a consequence of prejudicial publicity both prior to and during his Trial, in violation of his rights in terms of ECHR Art 6. Specifically having regard to:
The nature of the publicity;
The involvement of the authorities in the dissemination of information to the press;
The failure of the Court to control the publicity;
The failure of the prosecuting authorities to control the publicity;
The failure of the Court to take steps to manage the trial in the light of the prejudicial publicity;
The Scottish jury system".
[17] As already mentioned, prior to the trial the appellant presented a minute pleading oppression in bar of the trial on the basis of prejudicial publicity which was heard by Lord Wheatley. Taking the view that any potential risk of prejudicial effect on the jury was capable of being managed by the presiding judge - see opinion paragraph 12; 2001 SCCR 836, 844 - Lord Wheatley refused to uphold that plea. He granted leave to appeal and his decision was subsequently upheld by the Appeal Court. Accordingly, despite the wide terms of the ground of appeal the issue is essentially whether, notwithstanding what was debated and decided at the trial and what was said by the trial judge to the jury both at the start of the trial and, towards its conclusion, in his charge to the jury, the trial was yet rendered unfair by reason of the prejudicial pre-trial publicity.
[18] In the course of his charge to the jury, the trial judge said, among other things:
"Now, ladies and gentlemen, I have spoken about your responsibility to evaluate and assess the evidence and reach a decision in the light of the evidence. That is what you undertook to do when you took the oath at the start of this trial. So let me dwell for a moment upon what evidence is for this purpose. Evidence quite simply is the testimony of witnesses which is actually given in this Court including any documentary evidence or other material to which they may refer in the course of what they say which had been produced in the case. That, ladies and gentlemen is the limit of it. That is what evidence is. Evidence does not include assertions or propositions or suggestions which have been put to witnesses in questions to them with which they did not agree. Furthermore, evidence does not include any extraneous material in any form which may have come to your attention concerning this case or to Mr Beggs or concerning Mr Beggs, the accused, from any source outside the four walls of this Court, whether it be in Press, on television or in any other way. Any such material as that should be completely ignored by you. That is not evidence. To pay heed to it would be quite simply a breach of the oath which you took at the start of theses proceedings to reach a decision in the light of the whole evidence in the case. So please, ladies and gentlemen, do bear these matters in mind when you come to deliberate."
Similar warnings were given by the trial judge at the start of the trial and while the available transcripts do not include a transcription of that particular part of the trial proceedings, it is not suggested that anything materially different was said.
[19] In approaching the matters raised in this chapter of the appeal it is important to note the nature, but particularly the timing, of the potentially prejudicial publicity in issue before the Appeal Court in August 2001. In paragraphs [13] to [16] of the narration of the submissions of counsel for the accused to the court hearing the appeal from Lord Wheatley's decision one reads -
"[13] On 17 December 1999, the day after the search warrant was sought, newspapers named the appellant as the prime suspect. The crime was already being styled the 'Limbs in the Loch Murder'. In the Daily Record of Saturday 18 December there was reference to the appellant as the "Gay Ripper". Mr Findlay [counsel for the accused] submitted that at this stage one could see from the press coverage that a sensational approach was being adopted. It was either calculated to cause fear and alarm or at the very least was liable to cause fear and alarm that the appellant was at liberty. The use of terms such as "ripper" was a deliberate attempt to make a connexion to "Jack the Ripper", and to Peter Sutcliffe, the "Yorkshire Ripper". The expression "Limbs in the Loch Murder" was guaranteed to fix the matter in the public consciousness.
[14] Mr Findlay accepted that it was the purpose of the publishers to sell newspapers, but submitted that this was extreme sensationalism. On 19 December the appellant's photograph was published by the Sunday Mail with a caption: 'MP's girl and the gay killer'. He was referred to as dangerous, a computer 'nerd' who trawled the seedy side of the web. The newspapers printed views of the appellant's private character, and crucially wrote about his previous convictions. A photograph was published, showing him handcuffed to prison officers being led away to serve a life sentence for the murder [in Teeside], and the idea was introduced that he was acquitted of that murder on appeal on a technicality.
[15] Those three days started a press campaign, which Mr Findlay described as a 'feeding frenzy'. It was sensational. At times it was vicious. It was virulent. In many respects it was inaccurate. It was self-congratulatory in tone. It had more to do with selling newspapers than accurate reporting of fact. It was heedless of the fact that the man they vilified could be standing trial and was entitled to a fair trial. There were a few indications of people coming forward to advise caution. But they were submerged in the welter of publicity adverse to the appellant.
[16] After the petition warrant had been granted, late on 21 December 1999, there was a more moderate approach. But, crucially, after that stage, the Crown decided on 24 December to release the pictures of the appellant. This followed a clamour of media calls to 'find Beggs'. There was still a level of intensity of comment, though a change of emphasis. The photographs appeared in the Daily Record on 26 December with the authority of the Crown."
In amplification of the first sentence of paragraph [16] of that opinion, the Solicitor General advised us that on 21 December 1999 the Scottish Executive, acting on behalf of the Crown Office, issued a press release advising simply that the proceedings were "now active" for the purposes of the Contempt of Court Act 1981. He provided a copy of that release.
[20] In considering Lord Wheatley's decision, the Appeal Court accepted that the publicity immediately following Barry Wallace's disappearance was prejudicial to the appellant. At paragraphs [29] and [30] of its opinion, the Appeal Court said:
"[29] If we turn, then, to the central issue we should in the first place say that in our view there is no doubt that the publicity which followed the disappearance of Barry Wallace was extensive and highly prejudicial to the appellant. The Advocate depute did not dispute that. It is not, in our view, necessary to go into the publications in particular detail or to recite the various pejorative epithets that were used in relation to the appellant. It is sufficient to note that the information published included statements that the appellant had previously been convicted of murder, that his conviction had been quashed "on a technicality" and that he had also been convicted of assault. Moreover, the publications drew attention to the fact that there was some similarity in respect of the use of a razor or similar instrument between the circumstances of the appellant's previous convictions and the supposed circumstances of the present case. This is just the kind of information which has led to the discharge or refusal of a prosecution, in the few cases in which that extreme course has been resorted to by the court. It is, of course, true that there are legal systems in which the court, and the jury, are permitted to know details of a person's previous criminal record, but our practice has always set its face very strongly against any such disclosure. It is well known that even accidental disclosure of some minor previous conviction in the course of a trial may well lead to abandonment of the proceedings or at least of the particular indictment. In these circumstances, we have no doubt that publication of such information was very liable to prejudice the accused. Indeed, we would question whether any reporter or editor could have been unaware of the importance which the law of Scotland gives to non-disclosure of a previous criminal record. In these circumstances, if the trial had required to proceed within the normal period after the issue of a petition warrant, that is assuming a relatively quick arrest and a trial within 110 days, we would have grave doubts as to whether the prosecution could have proceeded with such a timescale. In the light of the pre-trial publicity, the Crown might have had to consider whether to release the appellant from custody and endeavour to bring the case to trial before the expiry of the twelve month time limit.
[30] If the prejudicial nature of the information is the crucial matter to be put on one side in considering the application of the Stuurman test, the matters to be placed on the other side can be succinctly referred to as the effects of the lapse of time and the process of trial. As has, again, been set out in previous authority, the legal systems which rely on adversarial proceedings and trial by jury are prepared to extend a high degree of trust, which is believed to be well merited, to the readiness of jury men and women to apply the law as it is stated to them and consider the case strictly on the evidence led at a trial. If this were not so, it is doubtful whether the continuance of the practice of jury trial could be justified. Further, as the cases show, it has been generally accepted, not only in the United Kingdom, that the effect of prejudicial press publicity tends to diminish with time. While the general public recollection may continue to hold some idea that a particular widely reported event has occurred and that there were some remarkable or sensational circumstances surrounding it, recollection of the details of such publicity is a very different matter. In the present case, the result of the delays which have occurred is that the vast bulk of the publicity is now more than eighteen months in the past. It is true that there were reports of the appellant's return to Scotland which might have reminded a reader of the previous narratives, but such reports did not go into any detail in relation to what had previously been reported. They certainly did not repeat the materially prejudicial statements to which we have referred. Apart from the mere lapse of time, account is always taken of the trial process itself which by setting the evidence before the jury in detail and providing them with the expert analyses of counsel and the directions of the judge, is calculated to direct their attention to the evidence and away from any extraneous material."
[21] Since the offending publicity was essentially confined to items that had appeared in the press and other organs of the media between the date when it became known to the media that the police had searched the appellant's flat in Kilmarnock on 17 December 1999 and the proceedings having become "active" on 21 December 1999, it may be noted that roughly one year and eight months had elapsed when the Appeal Court gave its decision on 17 August 2001 and roughly a further month ensued before the trial began.
The trial - motion for postponement of reporting of the proceedings
[22] At the trial, counsel for the appellant raised on the first day, and before any evidence had been led, the matter of prejudicial publicity. He did so in the specific form of a motion that the trial judge should make an order under section 4(2) of the Contempt of Court Act 1981 postponing any reporting in the press or other media forms of the actual trial proceedings. In doing so, the trial counsel, Mr Findlay, made clear to the trial judge that he had no difficulty with any publicity which constituted "a fair and accurate report" of the trial proceedings; his concern - put shortly - was that in reporting the trial proceedings the media - or at least one or more members of the media - would be tempted to stray beyond fair and accurate reporting of the actual trial and bring again to immediate public notice the particular prejudicial material which had been published prior to the proceedings having become active on 21 December 1999.
[23] The trial judge refused this motion. He gave it careful consideration and delivered a written opinion on the matter, which is reported at 2001 SCCR 869 and to which we refer. The trial judge considered what was said by the court in its decision in Galbraith v HM Advocate 2001 SLT 465; 2000 SCCR 935. The court there observed that the power under section 4(2) of the Contempt of Court Act 1981 to make an order postponing publication of a fair and accurate report of the trial proceedings was confined to such a publication; it was not intended for use to prevent unfair or inaccurate reporting, which would be capable of being dealt with as a contempt, breaching the strict liability rule enacted under the Contempt of Court Act 1981. Having set out at page 874 the observations in paragraph [10] of the Opinion of the Court delivered by the Lord Justice General in Galbraith, the trial judge went on to say in his opinion of 17 September 2001:
"In the light of those observations, in my judgment the question for me is whether 'a fair and accurate report of the present trial,' 'held in public, published contemporaneously and in good faith' would create 'a substantial risk of prejudice in the administration of justice in' these 'proceedings'. I have come unhesitatingly to the conclusion that it would not. Senior counsel for the accused himself said that he had 'no problem' with fair and accurate reporting; his concern lay elsewhere. That acceptance that fair and accurate reporting did not create a problem is plainly fatal to the motion which he made, since, as the Lord Justice General put it in Galbraith, section 4(2) is intended to deal with fair and accurate reports of proceedings which should nonetheless be postponed, not with material outwith the scope of such reports, to which the strict liability rule could apply under section 2(2) of the Act of 1981.
Quite apart from the position taken up by senior counsel for the accused, in relation to the effect of fair and accurate reporting of the trial, I can see no basis at all in this case for concluding that fair and accurate reports of the trial, which will, after all, be held in public, could create a substantial risk of prejudice to the administration of justice in these proceedings. Indeed no case was cited to me in which the court has held that such reporting could create such a risk in the proceedings themselves, as opposed to other proceedings."
[24] Before us, Mr Shead, counsel for the appellant, sought to question this decision by the trial judge on the basis that postponement of fair and accurate reporting of the trial proceedings was a potential safeguard and that with the benefit of hindsight the focus of trial counsel and the court was too narrow. However, on the court's testing that assertion, what was submitted was that reading fair and accurate contemporaneous reports of the trial might revive in the minds of the jury some earlier press report which they might have read some 21 months earlier.
[25] We are unable to accept this branch of the argument for the appellant. In light of the appellate decision in Galbraith, the trial judge was undoubtedly correct in refusing the motion for postponement of fair and accurate reporting of the trial. There was no proper basis upon which he could have acceded to the motion made to him. Moreover, and perhaps more importantly, there is no suggestion in what was put before us that the allowance of the normal rule of reporting matters fairly and accurately resulted in fact in the realisation of the apprehension of trial counsel that the allowance of the contemporaneous publication of such fair and accurate reports would be the source of a repetition of the prejudicial material published prior to the proceedings becoming active. The apprehension upon which the motion was advanced not having materialised, we are unable to see how it could be contended that the refusal of this motion rendered the trial unfair. Moreover, we are unable to understand the suggestion, advanced by counsel for the appellant to us, that the reading by a member of the jury of a fair and accurate report of the day's proceedings should prompt a mental reaction of recalling prejudicial material which would not derive from the hearing of the whole evidence on that and the previous days of the trial.
"Pre-active" publication and the internet
[26] At the conclusion of the first day's evidence, counsel brought to the attention of the court an article downloaded from the internet and entitled "Garry Otton's Scottish Media Monitor" and indicated that if the material were not removed from the site by the next day he would invite the court to summon the publisher to answer to a prima facie contempt of court.
[27] By the following morning the article in issue had been so removed and accordingly nothing more was required as respects it. However, trial counsel then drew attention to further material which had been downloaded from the internet and which, it was submitted, constituted a prima facie contempt of court. The material in question is described in greater detail in paragraph [4] of the opinion delivered by the trial judge in respect of this matter on 21 September 2001, which is reported as HM Advocate v Beggs 2001 SCCR 879.
[28] It is apparent that the downloaded material in issue was indeed articles which had appeared in the press in the interval between the search of the flat of the appellant on 17 December 1999 and the proceedings having become active on 21 December 1999. It appears also to have been accepted by both sides that those materials were archived material which had originally been published before the criminal proceedings became active on 21 December 1999 and that the action of entering the appellant's name into a standard search engine would not lead the searcher to these materials. Instead the searcher would have to go to the website of a particular newspaper or broadcaster and then search its archived material. A lengthy debate took place on inter alia whether the retention in the website's archives of the archived material constituted "publication" for the purposes of the Contempt of Court Act 1981, and if so, whether the test under section (2) of that Act of a substantial risk of seriously impeding or prejudicing the proceedings was made out. The trial judge concluded that the archive material was "a publication" but that the test set out in section 2(2) of the 1981 Act was not met. In that latter regard, having set out the observations of Schiemann LJ in Attorney General v MGN Ltd [1997] 1 All ER 456, 460b-461c the trial judge noted in paragraph [24] that the material in issue, published in December 1999, was accessible only as archive material and would not be revealed by simply inserting the appellant's name in a search engine. The trial judge then continued, in paragraph [25] and [26] of his opinion as follows:
"[25] Among the other factors referred to by Schiemann L.J. is the focusing effect of listening over a prolonged period to evidence in a case. It appears to me that in the circumstances of the present case this is a factor of some importance. Furthermore, he considered that an important consideration was the likely effect of the judge's directions to a jury. Likewise, I consider that this is a matter of great importance. At the commencement of the present proceedings I took pains to direct the jury that their ultimate decision would require to be based upon the evidence which they heard in the Court proceedings, and not upon any extraneous matter which might come to their attention. In due course, that direction will be repeated when the time comes for me to charge the jury. I have no reason to suppose that the jury in the present case will not follow that direction. The system of trial by jury depends upon confidence being placed in juries to follow directions which they are given.
[26] In the light of the foregoing circumstances and considerations, the conclusion which I have reached is that the material drawn to my attention by senior counsel for the panel has not been shown to be material which would create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Accordingly, I am not persuaded that there has been demonstrated a prima facie contempt of court caused by that material. In these circumstances I refuse the motion made to me to order the publishers of the material to appear at the bar of the Court."
[29] We did not understand counsel for the appellant to submit that the trial judge erred in reaching the conclusion which he did respecting possible contempt proceedings.
[30] Counsel again submitted rather that the focus before the trial court "had been too narrow". Contempt of court proceedings were directed towards the publisher, rather than reducing the risk of prejudice in the minds of the jury. Counsel also recognised that there were practical difficulties in taking contempt proceedings, particularly as respects internet publications; and he acknowledged that the trial Advocate depute had indicated to the court that the Crown would do what it could to have any offending material removed or rendered inaccessible.
[31] However, said counsel, there were a range of other responses and the giving of warnings to the jury to ignore any extraneous material was insufficient. Reference was made to Sinclair v HM Advocate 2008 SCCR 1 in which, at paragraph [16] of its opinion the court indicated that, in an appropriate case, the trial judge might give the jury a suitably framed direction about not actively seeking material about the accused on the internet. Counsel also referred to a model jury direction introduced in New South Wales in January 2005, which gave such an instruction, and to Direction 55A in the Crown Court Bench Book in use in England and Wales. Direction 55A is concerned with initial remarks to the jury and included a request to the jury not to try to obtain information elsewhere (e.g. on the internet). We were told that Direction 55A was inserted in June 2007 following the decision in R v Karakaya [2005] 2 Cr App R 5(77). Counsel further suggested that the trial judge could have vetted the jurors individually by inquiry as to their recollection of any prejudicial publicity or he could have ordered that the jury be sequestrated for the whole of the trial proceedings. Although over recent years the courts have become more aware of the potential difficulty presented by internet material relating to an accused, as public familiarity with the internet had become greater, the content of the right to a fair trial, it was submitted, did not alter. It was accordingly submitted that in the appellant's case the safeguards which were adopted were insufficient to ensure that the trial was fair.
[32] In his response to this branch of the argument, the Solicitor General observed at the outset that there was no evidence that any juror was prejudiced by the material published before the proceedings became active; or that the jury or any member of it had regard to extraneous material in assessing the evidence and reaching a verdict; or that the jury collectively or individually did anything contrary to their oath. Neither the defence, nor the prosecution, nor the court had noted anything which might indicate that any juror had regard to extraneous materials. Juries were presumed to follow instructions from the judge and in Galbraith v HM Advocate the court, at paragraph [13], had expressed confidence in the jury's ability to reach a verdict unaffected by extraneous materials. Moreover, as was stated by the European Court of Human Rights in Pullar v United Kingdom 1996 SCCR 755, paragraph 32, the principle that a tribunal is presumed to be impartial applied also to a jury. Reference in that respect was also made by the Solicitor General to Noye v United Kingdom [2003] 36 EHHR CD 231, at 234 to 238. Given those presumptions the absence of any evidence of the jury's having had regard to any prejudicial material was therefore important. The Solicitor General also referred to the view expressed by Lord Prosser in his opinion in Cox v Griffiths 1998 JC 267, 276G - "Juries are healthy bodies. They do not need a germ-free atmosphere."
[33] The Solicitor General next adverted to the factors or safeguards which had been present and which reduced the risk of prejudice. First, some 21 months had passed between the appearance of the prejudicial publicity in question and the start of the trial and the courts had consistently noted the effect of the passage of time as something which could efface or reduce any recollection of the prejudicial publicity. Reference was made by him to a number of reported decisions in which the court had held that in light of the effluxion of time a fair trial was possible, notwithstanding the prior publication of prejudicial material. Those cases were Stuurmann v HM Advocate 1980 JC 111 [4 months]; Haney and Others v HM Advocate 2003 SCCR 253 [7 months]; Mitchell v HM Advocate 2008 SCCR 469 [14 months]. Secondly, the trial process itself was recognised as being an important factor which much offset or effaced any recollections of prejudicial publicity. In that respect the Solicitor General referred to Montgomery v HM Advocate 2001 SC (PC 1); 2000 SCCR 1044, particularly Lord Hope of Craighead at p. 30E; 1107A; Haney and Others, at para. [22]; and to BBC Petitioners 2002 JC 27, at paragraph [19]. Thirdly, there were the careful directions of the trial judge to the jury both at the start of the trial and in his charge in which he instructed the jury to pay no attention to any extraneous materials, the concept of such materials being fully explained by the trial judge in his charge. With all of these safeguards in position, it could not be said that the trial was unfair. And particularly there was no evidence that these safeguards had not worked.
[34] As respects the additional steps suggested by counsel for the appellant, the Solicitor General submitted that the sequestration of the jury for the duration of the trial - which would have involved their confinement overnight and at weekends in an hotel in which they were refused access to the internet - was both impracticable and utterly disproportionate. As respects the giving of an additional direction along the lines of the model directions recently introduced in England and Wales, and New South Wales, and discussed in Sinclair v HM Advocate, the Solicitor General pointed to the fact that there was never any suggestion at the trial that such a direction or instruction might be given. At a very recent "high profile" trial in which he had been himself involved, there had been discussion between counsel for the defence, the Crown, and the presiding judge about the giving of such a direction and defence counsel in that case were firmly against the giving of such an instruction to the jury. Finally, jury vetting was wholly inimicable to our procedures. Reference was made to Spink v HM Advocate 1989 SCCR 413 and McDonald v HM Advocate 1997 SCCR 408. The submission of the Solicitor General was accordingly that this ground of appeal should be rejected.
[35] In approaching these competing submissions we start by accepting, as did the Appeal Court dealing with the pre-trial minute, that the articles appearing in the press and other broadcasting media in the interval between, on the one hand, the discoveries in Loch Lomond on 6 December 1999 and more particularly the search of the appellant's flat on 17 December 1999 and, on the other hand, the criminal proceedings becoming active on 21 December 1999 were highly prejudicial to the appellant. But, as that Appeal Court recognised, in part at least as a result of the interposition of the extradition proceedings, the reality was that a substantial period of time had elapsed since the publication of the offending material in December 1999. In the event, the trial began some 21 months after the proceedings became "active". It has, in our view, been consistently noted by the courts that the passage of time may assuage the effects of prejudicial media reporting. The Solicitor General referred us to a number of instances in which considerably less time had elapsed than in the present case but in which it was nonetheless held that the trial process would not be, or had not been, rendered unfair. These instances are noted in our summary of the submission of the Solicitor General. We recognise of course that it is not a simple matter of measuring the extent to which time has elapsed. The nature of the prejudicial material and other relevant factors may come in to play. Further, as the courts have consistently recognised in the authorities to which we were referred, the discipline of the trial process is another important factor in the evaluation of whether the holding of a trial against a history of prejudicial publicity is unfair. Put shortly, the jury having been participant in an ongoing inquiry in which they have heard the actual evidence from a variety of classes of witnesses, it is that evidence which will be at the forefront of the mind of the jurors and which will predominate over any distant memory the jury might have of some earlier publicity.
[36] Additionally we bear in mind the observations by Lord Osborne in Fraser v HM Advocate quoted by the court in its opinion in Mitchell v HM Advocate at paragraph [76] and endorsed as possessing force. Lord Osborne's observation was to the effect that whereas the court may be presented with an assembly of a number of prejudicial published articles, it is highly improbable that any potential juror would have read all of that material; there is thus a danger in overestimating the impact which prejudicial publicity may have had on any particular juror.
[37] Further, the trial judge gave the jury in the present case very clear directions in his charge on the need to decide the case only on the evidence and to set aside any extraneous material. He did not content himself with a mere reference to "extraneous materials", but went on to explain the term by reference to the press, television or any other source. Similar instructions were given to the jury at the very start of the trial.
[38] In our view these were all important factors or safeguards against any effect on the trial which might have emanated from what was published in the various organs of the media in the interval between 6 and 21 December 1999, and more particularly between 17 and 21 December 1999, since it was only on 17 December that the appellant was identified in the press. Certainly, in an era before the archiving of material in electronic form on internet websites, we consider that a court would not have difficulty in dismissing the contention that such prejudicial publicity in that short interval prior to the criminal proceedings becoming active inevitably, and without anything further, rendered a trial taking place some 21 months later unfair where the directions given by the trial judge in the present case had been so given.
[39] However, it is of course necessary for us to consider what might be termed the additional "internet dimension". In doing so we note first that the decision of the trial judge not to arraign any website authors for possible contempt proceedings was, in our view rightfully, not characterised by counsel for the appellant as involving any error in law. Secondly, we note again that the information given to the trial judge by the trial Advocate depute on the accessibility of the archive material was not questioned by trial counsel and further that it was not suggested to us that, respecting the state of internet search engines in 2001, the information given to the trial judge was flawed. Accordingly, at the time of the trial, in order to obtain access to the prejudicial archive material, a relatively determined search was required. It involved first selecting a publisher's website and then entering into a further search within that archived website. Thirdly we note that, in accordance with our general experience, it was accepted by both counsel for the appellant and the Solicitor General that while in 2001 many people did have access, at home or at the workplace, via computer to the internet, that access was less in degree and familiarity with computer access and resort to such access was less than obtains today.
[40] It is against that background of circumstances as they were in 2001 that we consider the suggestion, never formulated as a distinct proposition or submission, that to ensure a fair trial the trial judge, in 2001, was required, additionally to the other instructions which he gave at the start of the trial, to direct the jury to the effect that the jury members should not undertake any internet inquiries. It is to be observed, first, that the giving of such an additional instruction or direction to the jury was never suggested to the trial judge by either trial counsel or the trial Advocate depute. Secondly, there may be intelligible reasons why that suggestion was not made. Whether such an instruction is a good idea is a matter of debate. As the Solicitor General related, in his recent personal experience, the giving of such a direction was seen as not being - or at least not always being - in the interests of the defence. Thirdly, the model directions culled from New South Wales and the bench book in use in the Crown Court in England and Wales to which we were referred by counsel for the appellant are not only not mandatory in those jurisdictions but also were not in force at the time of the appellant's trial. They were introduced much later. The same, in our view, applies to the observations recently made by the court in Sinclair v HM Advocate. The fact that some jurisdictions selected by counsel for the appellant have chosen one path does not indicate a universality of wisdom. There are no doubt others who may have chosen not to follow that particular path.
[41] In these circumstances we are satisfied that the fact that the trial judge did not additionally and specifically instruct the jury not to undertake internet searches did not involve any failing on the part of the trial judge. His primary instruction was to ignore any extraneous materials and to pay attention only to the evidence. It was implicit in that instruction that the members of the jury should not seek out such extraneous materials. Accordingly, we do not consider that the now desiderated step of giving the jury additional instructions not to undertake any extensive internet searches was one which was necessary for the ensuring of a fair trial and we reject the argument advanced by counsel for the appellant on this head.
[42] As to the further suggestions put up by counsel for the appellant, we consider first the suggestion that the trial judge should have ordered that the jury members be sequestered for the entirety of the trial. Although at one point trial counsel floated such a course as a possible motion which he might make, in the event no such motion was made, we think wholly understandably. The notion that the members of the jury should be sequestered in hotel accommodation every night and every weekend in conditions, even within the hotel, precluding access to the internet, is so disproportionate that it can readily be rejected. In reality, of which we think trial counsel would be very conscious, such sequestration of the jury might be likely to "backfire" seriously against the accused. Secondly, it was suggested that the trial judge ought to have embarked on an exercise of jury vetting, by specifically questioning the members of the jury regarding their respective recollections of the media articles published some 21 months previously. Suffice to say that such a procedure is without any warrant in our law and is wholly inconsistent with our practice of jury selection. We are not in the least surprised that responsible trial counsel did not make any such suggestion to the trial judge, who, in our view, could not have acceded to such a suggestion were it to have been advanced.
[43] These two further suggestions advanced by counsel for the appellant being thus unrealistic, we do not consider that they have any pertinence to the conclusion, foreshadowed in the earlier paragraphs of this part of this opinion, that it has not been shown that the trial proceedings were rendered unfair by the prejudicial publicity in issue.
[44] We have therefore come to the conclusion that we must reject ground of appeal 2, relating to prejudicial publicity.
(II) - PETRIE HEARSAY EVIDENCE
Introductory
[45] The ground of appeal relative to this chapter is ground of appeal 4, which opens thus:
"The Trial Judge erred in admitting, as hearsay evidence, a purported 'statement' made by Kenneth Petrie to police officers on 21 March 2000 (Crown Production no 25). Mr Petrie died on 23 February 2001. The Crown was permitted to lead evidence of the contents of the document said to contain the purported 'statement' in terms of s. 259 of the Criminal Procedure (Scotland) Act 1995. The admission of this material was wrong in law and rendered the trial unfair...."
The ground of appeal then seeks to elaborate the respects in which it is said that the trial judge erred in deciding to admit the hearsay evidence of Mr Petrie. As eventually argued, there are three such respects; first, the statement is said to be a precognition and therefore inadmissible; secondly, the statement is said to be irrelevant and collateral and therefore inadmissible on that account; and thirdly, it is contended that the prejudice which the statement might cause the appellant far outweighed any probative value which it might have, and on that basis the statement should not have been admitted in evidence. In giving his decision repelling the defence objection to the evidence, the trial judge delivered a full opinion which is reported at 2001 SCCR 891.
[46] Those parts of Mr Petrie's witness statement relied upon by the Crown are recorded by the trial judge in paragraph [3] of his Opinion as follows:
"... I am gay and I frequent the Edinburgh gay scene. I have been doing so for about three years now. I regularly attend no.18 Sauna and the New Town Bar. It was in the no.18 Sauna and the New Town Bar that I got to know Ian Beggs. I have known Ian Beggs casually for about two years now. Although I know Ian Beggs has a car, I have never been in his car or seen it. Through talking to him I know he lives in Kilmarnock ...
Ian also discussed with me how he would rather pick up a guy from a straight pub as opposed to from a gay pub. I told him I couldn't do that as I was scared I would get assaulted. Ian said he would befriend them first. He said that some of them would have quite a lot of drink in them. He said that he would say come back to my flat, there's more drink. Once he got them back to his flat he would give them more drink. Once they were drunk he would offer to share a bed with them or tell them they could sleep on the floor. After getting them into bed Ian didn't specify how he managed to have sex with them, but the impression he gave, that is what I suppose happened. Ian said the guys he preferred were younger guys...
Ian told me he liked to cruise early morning in an attempt to pick up young guys in his car."
[47] The circumstances surrounding the taking of Mr Petrie's statement were explored at a trial within a trial as noted by the judge in paragraphs [16] et seq of his opinion. One of the police officers who took the statement, Detective Constable James Robertson, gave evidence. That evidence established that in late 1999 or early 2000, door-to-door inquiries in Kilmarnock elicited information from a neighbour in the vicinity of the appellant's flat which focused police attention upon the appellant's whereabouts during the night of 4 December 1999. With that in mind, Detective Constable Robertson visited the New Town Bar in Dublin Street, Edinburgh, and made inquiries of the manager. Subsequently, on 21 March 2000, the manager telephoned the officer and told him that a person called Kenny wished to speak to him. Detective Constable Robertson and a colleague accordingly went to the bar that day. There they met Mr Kenneth Petrie, and learned that he might have useful information for them. They invited Mr Petrie to accompany them to the nearby Gayfield Square police station. He did so, and gave the statement, which was noted in manuscript. The statement was later entered in the Holmes computer programme (a computer programme used in major police inquiries).
[48] The evidence further disclosed that Detective Constable Robertson became involved in the inquiry on 16 December 1999. From that date onwards, a considerable number of police officers were involved. Briefing meetings were held. The Holmes computer programme generated actions which required to be carried out. The statement obtained from Kenneth Petrie was numbered "A1259", indicating action 1259 initiated by the Holmes Inquiry Plan. A senior officer, Detective Superintendent Geates, had given Detective Constable Robertson the task of taking the statement. At no stage was Detective Constable Robertson involved with the procurator fiscal or the Crown Office in connection with his inquiries. When the officer became involved in the inquiry, he was aware that the appellant was a suspect. He was aware that other persons were also suspects based upon the apparent modus operandi, involving dismemberment of the body. The officer learned that the appellant's house, and that of his parents, had been searched. By the end of December 1999 he was aware that police attention was focused on the appellant, and that a warrant had been issued for his arrest. He also became aware that the appellant was in the Netherlands, and that an application had been made for his extradition.
[49] It may be noted that at the point at which contact was made by Mr Petrie with the police and his statement noted, a petition warrant had been issued for the arrest of the appellant but he remained in the Netherlands and had not appeared on that warrant. Mr Petrie was later precognosced by the procurator fiscal on 7 September 2000.
Submissions
[50] Before us, counsel for the appellant submitted first that the document in question was in effect a precognition, and thus inadmissible as hearsay evidence - cf sections 259 and 262(1) of the Criminal Procedure (Scotland) Act 1995 and HM Advocate v McSween 2007 SCCR 3. The involvement of the Crown was the touch-stone. The Crown had been heavily involved prior to the date when the statement was taken (in particular in the context of publicity, extradition, and search warrants). In reality, said counsel, all inquiries were under the overall control of the procurator fiscal, and the statement noted from Mr Petrie should therefore be seen as having been taken on the instructions of and under the control of the procurator fiscal. The document was accordingly a precognition, and was inadmissible. Secondly, it was submitted that in any event the statement should not have been admitted as its contents were collateral and irrelevant: cf Walkers on Evidence, (3rd ed) ch 7. The trial Advocate depute, when making his application in terms of section 259, had not suggested that the statement was one "against interest", but had simply submitted that the statement gave a possible explanation for the appellant and the deceased being in each other's company. In fact, counsel submitted, the information in the statement was not relevant to either motive or mens rea. It was irrelevant evidence, and should not have been admitted. Thirdly, counsel argued that the prejudice caused to the appellant by the statement far outweighed any probative value it might have. Reference was made to Walkers on Evidence (3rd ed) loc cit; Nulty v HM Advocate 2003 SCCR 378; and also to the English law concept of "similar fact evidence" as described in O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534, Lord Bingham at page 540 et seq. Counsel commented that it would be surprising if there were no equivalent concept in Scots law. Against that background, counsel contended that there had been no need to lead Mr Petrie's statement, since there was evidence from forensic scientists establishing the deceased's presence in the appellant's flat. Thus any probative value of the statement was far outweighed by the prejudice the statement would cause. Further, having been granted leave to lead the statement in terms of section 259, the trial Advocate depute in fact put it to a use beyond that outlined in his submission, for in his jury speech the Advocate depute invited the jury to conclude that the appellant was a predatory homosexual who had lured the deceased back to his home to take sexual advantage of him. That meant that the Advocate depute had used Mr Petrie's statement as character evidence, and Scots law did not permit character evidence against an accused. On either approach (similar fact evidence, or character evidence) the statement should not have been led in evidence. Alternatively, the trial judge should have given the jury directions about the limited purpose for which such evidence could be used. In the end result, there had been prejudice to the appellant. Whether characterised as an act of the Lord Advocate, or simply as a question of fairness generally, in this respect the appellant had been denied a fair trial.
[51] In reply the Solicitor General submitted that the steps taken by the Crown of seeking search warrants, a petition warrant, and extradition did not mean it was controlling the investigation. In any event the proper test was not whether the investigation was being controlled by the procurator fiscal, but whether the statement had been taken on the instructions of the procurator fiscal: HM Advocate v McSween, paragraphs [11], [12], [18] and [19]. In the present case, the statement came into being only because of police door-to-door inquiries, which provoked a telephone call from a member of the public. The statement, once taken, was submitted to police headquarters at Kilmarnock, and not to the procurator fiscal. The words in the statement were Mr Petrie's, structured into sentences forming a narrative, and read over and corrected or approved by him. Police inquiries were continuing. The appellant had not yet been extradited, cautioned and charged, nor had an indictment been served upon him. In the circumstances, the trial judge was correct to conclude that the document was a statement by a witness, now deceased, and not a precognition. Secondly, the parts of the statement selected by the trial Advocate depute were relevant and admissible in that they demonstrated the habitual behaviour, preferences and sexual interests of the appellant, and, in particular, provided a possible explanation for the deceased's being in the appellant's company. Thus Mr Petrie's statement was one component of the Crown's circumstantial case. That evidence, taken with other evidence, enabled the jury to draw inferences about how and why the deceased came to be in the appellant's flat. It was part of the background to the Crown case. Finally, in relation to the appellant's third argument, in so far as it had been suggested or implied that the statements in issue were evidence of bad character, it was not accepted that the parts of the statement selected by the Advocate depute contained such evidence. Evidence of character generally was admissible if relevant, for example, to demonstrate habitual behaviour or a characteristic of the accused: Walkers on Evidence (3rd ed) paragraph 7.8.1. The trial Advocate depute had not sought to base the inference that the appellant was a predatory homosexual solely upon Mr Petrie's statement. In his speech to the jury he had invited the jury to draw that inference from various pieces of circumstantial evidence, including the evidence of the deceased's father, witnesses in the town centre, Mr Bache, the pathologist, the police surgeon, and Mr Petrie's statement. It was clear that the appellant's ultimate conviction for murder was not based solely or to any material extent upon Mr Petrie's statement. There had been a sufficiency of evidence without that statement. It was notable that, at the trial itself, the defence had objected to the statement on the basis that the content, while innocent and innocuous in nature, was collateral and irrelevant. The description of the content of the statement as "innocent and innocuous" was very different from the current submission. In all the circumstances, the admission of Mr Petrie's statement had not resulted in an unfair trial.
Discussion
[52] In considering these competing contentions we start by noting that the nature of the distinction between a precognition and a prior statement made by a witness is extensively discussed in paragraph [12] of the opinion of the Court in HM Advocate v MacSween (which of course was given some years after the appellant's trial) :
"The critical feature of [the class of documents categorised as precognitions] appears to be that it comprises statements obtained on behalf of a party to proceedings; while, no doubt, such statements may be obtained in respect of prospective as well as current proceedings, statements taken by a police officer 'investigating a crime' are not within [that class] - notwithstanding that the police investigation may lead to criminal proceedings. Accordingly, where as a matter of an ongoing police enquiry a police officer, on the instructions of a senior police officer and without reference to the procurator fiscal, takes a statement from a potential witness, that statement will, at least ordinarily, be within the second class [i.e. the class of documents categorised as witness statements] and so admissible in evidence. The position is, however, different where, after proceedings have been initiated, a police officer takes a statement from, say, a person appearing on a defence list of witnesses speaking to an alibi. At that stage statements of that kind will ordinarily be taken on the instructions of the procurator fiscal (McNeilie v HM Advocate). Although the report of McNeilie does not expressly state that the statements from the defence witnesses were taken on the instructions of the procurator fiscal, that they were so taken (as would be normal at that stage) is said to be 'clear' (Kerr, Lord Justice Clerk Thomson at pp 18-19)."
[53] In the present case, Mr Petrie's statement came into existence as a result of standard exploratory door-to-door inquiries by police officers (cf HM Advocate v McGahy 1991 JC 1991) and a voluntary telephone call to the police from a member of the public. With the exception of the first paragraph of the statement (which followed a set style used to record personal particulars) the police officers noted what Mr Petrie actually said: thus what was recorded was not "filtered through the mind of another, whose job [was] to put what he [thought] the witness meant into a form suitable for use in judicial proceedings": Kerr v HM Advocate 1958 JC 14, at page 19. Furthermore, Mr Petrie read through the statement, made some amendments, and approved it. The statement was then sent to the headquarters of the police inquiry (and not to the procurator fiscal). After the statement had been taken, police inquiries continued. In all the circumstances, it is clear that the statement was not taken on the procurator fiscal's instructions. Indeed it was some five months later, on 7 September 2000, that Mr Petrie was precognosced by the procurator fiscal.
[54] In these circumstances the trial judge was in our view correct to categorise the document as a statement and not a precognition. Not only was the document prepared at an early stage of the police investigation, but it was generated by standard police inquiries resulting in information volunteered from members of the public: and, importantly, was given by Mr Petrie on his own initiative, albeit that his desire to give the information to the police was channelled through the agency of the bar manager of the New Town Bar. The fact that the Crown Office had been engaged in matters relating to publicity (by issuing a notice that proceedings were "active"), and applying for search and petition warrants and extradition does not alter the nature and genesis of the statement, which was clearly a witness statement obtained by the police in the course of police investigations, without direction or instruction from the procurator fiscal.
[55] As for the relevance of the contents of the parts of statement invoked by the trial Advocate depute, we agree with the Solicitor General that Mr Petrie's statement was simply one piece of circumstantial evidence to be considered along with many other pieces of circumstantial evidence. Mr Petrie was relating what the appellant had told him of his habitual behaviour, preferences, and sexual interests. The trial Advocate depute had, in the course of his submissions, accurately stated the use to which the statement would be put, recorded in paragraph [4] of the trial judge's Opinion as follows: "The passages concerned would assist in explaining how the panel and the now-deceased had come to be in each other's company and the purpose for which the now-deceased had been taken to the panel's home". Once all the evidence had been led, Mr Petrie's statement, if accepted by the jury and considered along with the other pieces of circumstantial evidence which they accepted, might assist them to some extent in drawing inferences about how and why the deceased, last seen in Kilmarnock town centre, and who had no previous connection with the appellant, and who did not normally go to places with strangers, might end up in the appellant's company and in his flat. But, while accepting that the hearsay evidence was thus not irrelevant, in light of all the other evidence in the case, we agree with the Solicitor General that the appellant's conviction cannot be said to have been based solely or to a material extent upon Mr Petrie's statement. The statement was simply one of many relevant pieces of circumstantial evidence.
[56] Although counsel for the appellant described the passages from Mr Petrie's statement in question as evidence of character, we did not understand him to contend that it was evidence of bad character. Indeed defence counsel submitted to the trial judge that the evidence related to actions of an innocent and innocuous nature. While some might possibly question whether those epithets are entirely apposite, we also incline to the view that the actings described in the relevant parts of Mr Petrie's statement do not properly constitute evidence of bad character. In any event, relevant evidence - and for the reasons given we consider the evidence in question was relevant - is not rendered inadmissible because it also reveals bad character (cf Walkers para 7.8.1). In these circumstances we do not consider that any prejudicial effect of the admission of the evidence outweighed its probative value. It may be noted that no submission that the evidence was inadmissible on that basis was advanced to the trial judge.
[57] Finally, we note that the trial judge, anticipating in large measure the observations of the Lord Justice Clerk in para 37 of his opinion in Nulty v HM Advocate 2003 SCCR 378, duly gave directions to the jury, warning them to treat the hearsay evidence of Kenneth Petrie with caution, for the reasons which he carefully explained. It is not said in this ground of appeal that the jury were misdirected. We add that evidence concerning the appellant's sexual interests and his statement as to what had occurred on the night in question was also led from Mr Bache. Many other adminicles of circumstantial evidence were available to the jury to enable them to draw inferences and form a view. Thus the evidence of Mr Petrie's statement did not stand alone and was not thus a crucial element in the prosecution case. So we are unable to detect any sound basis upon which it would be open to us to hold that the admission of evidence from the police officer of what Mr Petrie said to him, by reason of its being hearsay evidence, constituted a breach of any ECHR right of the appellant.
[58] In the result therefore we are not persuaded that the trial judge erred in any way in his assessment and treatment of Mr Petrie's statement, or that the admission of the evidence concerning that statement rendered the trial unfair. We must therefore reject ground of appeal 4.
(III) - THE ADVOCATE DEPUTE'S CONDUCT
Introductory
[59] Ground 6 of the appellant's Note of Appeal states:
"There has been a miscarriage of justice in that the conduct of the Advocate depute was such as to deprive the appellant of a fair trial. The Advocate depute made frequent, deliberate, inappropriate and prejudicial comments both in the course of the evidence led before the jury and in his address to them at the conclusion of the trial to the effect that the appellant was able to give evidence about matters which were relevant to the issues to be considered by the jury and that his silence was to be interpreted as habile to the proof of his guilt.
The Crown failed to proceed with the restraint that is appropriate when commenting on an accused person's exercise of his right to silence.
The Advocate depute commented on the failure of the appellant to give evidence in relation to:
(i) the hearsay evidence attributed to the deceased Kenneth Petrie which was admitted as a statement;
(ii) the hearsay evidence given by Crown witness no. 8, Richard Bache.
In addition, in the course of his address to the jury, the Advocate depute made a melodramatic gesture by turning to the appellant sitting in the dock and uttering the question:
"Why did you do that?"
The appellant was obviously unable to answer this question from his position in the dock. This question amounted to improper and inappropriate comment on the appellant's decision not to give evidence on his own behalf."
[60] In presenting this ground of appeal counsel for the appellant began by referring to the evidence of Detective Constable Robertson and Mr Bache and, particularly, certain passages in the re-examination of these witnesses by the Advocate depute. Detective Constable Robertson gave evidence about obtaining a statement from Kenneth Petrie, all as described earlier. In cross-examination, defence counsel pointed out inter alia that as Mr Petrie was dead, he had been unable to come to court to be cross-examined; perhaps to concede that he had been uncomfortable in the police station and had said whatever the police wanted him to say; or to affirm that he disliked the appellant and had used an opportunity to "get back at him". Mr Bache gave evidence inter alia of a telephone conversation which had taken place between him and the appellant on Sunday 5 December 1991, during which the appellant boasted of a sexual conquest. Mr Bache said that the appellant told him that on the previous evening (Saturday 4 December 1999) he had "got off with a guy" who was "young ... sweet or cute or something like that". In cross-examination, defence counsel put it to Mr Bache that he was telling a pack of lies, which Mr Bache denied.
[61] The questions put in re-examination by the Advocate depute to Detective Constable Robertson included the following:
"Q. ...Now, of course, what [Kenneth Petrie] was telling you about was a conversation between himself and Mr Beggs?
A. That is correct, yes.
Q. You were not there when the conversation passed between the two men?
A. No.
Q. So you are not able to vouch for the truthfulness of what Mr Petrie told you?
A. That is correct, yes.
Q. As far as you could tell from what Mr Petrie was explaining to you, was anyone else present when this conversation took place?
A. No.
Q. All right, so Mr Petrie either told you the truth, or something that wasn't true?
A. That is correct, yes.
Q. Now, if the two of them were present at this conversation, who would know what passed between them?
A. The only person ... would be Mr Beggs.
Q. Yes, all right, and at the time you spoke to Mr Petrie who would know what had passed between the two of them?
A. Mr Petrie and Mr Beggs."
The questions put in re-examination by the Advocate depute to Mr Bache included the following:
"Q. Standing the fact that the telephone conversation [on 5 December 1999] took place, the only dispute could be about the content?
A. Yes.
Q. Mr Findlay [defence counsel] is the man who chooses to say to you that you're lying about that. Was he a party to the conversation?
A. No.
Q. Who were the parties to the conversation?
A. Myself and Ian Beggs.
Q. How many people therefore are in a position to tell us what was said?
A. Well, two.
Q. And you are one?
A. Yes.
Q. And you have done so?
A. Yes."
[62] Counsel for the appellant then referred to the passage in the Advocate depute's speech to the jury in which the Advocate depute said inter alia:
"...Now did he just die, as it's been put, or was he killed? Well, what does the medical evidence tell us? ...the evidence of post-mortem doesn't tell you very much about how he died but ... it tells you one thing that's very important. It tells you how ghastly and how gruesome the process of dismemberment was...
Imagine the process of removing the head. Think about carrying the pieces around. The torso, for goodness sake, the size of it. The horror of the whole process is formidable. Just think of the determination that would be needed to complete it. Picture for yourselves, ladies and gentlemen, when you're thinking about this in due course, in your own mind's eye, the process of his doing that and then ask yourself this, why did you do that? And you'll find the answer because, ladies and gentlemen, what the evidence surely tells us is this: (1) no‑one but the killer would have any need to do this; (2) no-one but the killer would have the determination to see it through; and (3) no-one but the killer would have the need to dispose of and hide the body.
Does the medical evidence tell us how he died? It doesn't. Does that mean there can never be a conviction for murder? Of course not ... It is possible to establish how a victim died by drawing an inference from the other evidence ..."
It is in the course of this passage, towards the end of the sentence which we have emphasised by italics, that, it was understood, the Advocate depute made the "melodramatic gesture" to which reference is made in the ground of appeal.
Submissions
[63] Counsel for the appellant submitted that, in the passages to which he had referred, the trial Advocate depute had in effect commented several times on the appellant's election not to give evidence. That issue had been foreshadowed in the Advocate depute's re-examination of two witnesses, Mr Bache and Detective Constable Robertson, when he suggested to each witness that the only person who could refute or deny the evidence which the witness had given was the appellant himself. Then in his jury speech, the Advocate depute had invited the jury to consider the dismemberment of the body, had paused, physically turned, pointed at the appellant, and asked the question "Why did you do that?" It was a melodramatic gesture which, on the face of it, amounted to a comment upon the appellant's undisputed right not to give evidence. Defence counsel and solicitor in court at the time considered that the behaviour and question went beyond what was normal or acceptable. While the prohibition against the prosecutor's commenting on the accused's failure to give evidence had been repealed by section 32 of the Criminal Justice (Scotland) Act 1995, any comment should be made with restraint: cf Renton & Brown Criminal Procedure, paragraph 18-78; Knowles v HM Advocate 1975 JC 6. The comment had not been made with the necessary care and restraint. The issue being explored by the Advocate depute at the relevant time (i.e. the dismemberment of the body) was an important piece of the Crown's circumstantial case, but nevertheless it was just one of many important pieces. It did not of itself justify treatment of that nature. Ground of appeal number 6 was accordingly well-founded.
[64] In response, the Solicitor General submitted that the questions put to the witnesses were entirely proper. As for the jury speech, the evidence of dismemberment was relevant to the charge of murder. The jury were entitled to draw incriminating inferences from that evidence. In the passage in question the Advocate depute was addressing the jury on the question whether the deceased had been killed or had died of natural causes, and there had been reference to the post mortem results and to the dismemberment. Then the Advocate depute indicated to the jury that the evidence posed a question - why had the body been dismembered? The Advocate depute then suggested where an answer might be found. Taken in context therefore, the Advocate depute was simply using a style of advocacy consisting of a rhetorical question to the jury, and then suggesting a possible answer which the jury might reach. Rhetorical question followed by suggested answer was a legitimate forensic technique used by advocates throughout the world. Properly construed, the question was not a comment upon the appellant's decision not to give evidence. Esto the question posed by the Advocate depute was to be regarded as such a comment, it had been made with restraint. Further, the trial judge had given appropriate directions that the appellant was under no obligation to give or to lead evidence, and that no adverse inference should be drawn from the fact that he had not given evidence.
Discussion
[65] In our view, the questions put by the Advocate depute to Detective Constable Robertson and Mr Bache to which counsel for the appellant referred cannot be said to be improper questions to put in the course of re-examination, where it had been respectively suggested in cross-examination that the giver of the hearsay evidence was unable to vouch the truth of what was being said by the deceased or that the witness was lying. The questions sought to confirm that only two people were present during the conversations and were, in the one case, the appellant and Mr Petrie, and in the other case, the appellant and Mr Bache. If any issue arose relating to the accuracy or otherwise of what had been said, those persons were best placed to resolve that matter. At that stage in the trial, we do not see how the questions can properly be said to be a comment on failure to give evidence, the moment for the accused to decide whether to give evidence not having arrived. It may be that the posing of those questions and the answers which they elicited might render that decision more difficult from the standpoint of the accused and his advisors, but that does not make the questions improper. Further, as respects the Petrie evidence, it was appropriate to confirm the absence of any other direct source of evidence of the conversation.
[66] In relation to the Advocate depute's jury speech, we accept that the Advocate depute did indeed adopt a technique of posing rhetorical questions and thereafter advancing on that form of question by suggesting the answer. The part of the speech criticised was but one of many such question-and-answer passages put to the jury for their consideration. For example, the Advocate depute addressed the jury inter alia as follows:
"...This case is of course a circumstantial case. Now what does that mean?... what I would suggest to you is that in this particular case, the circumstantial evidence can answer three questions for you: (1) Was Barry Wallace in the house of William Beggs in the early hours of Sunday 5 December 1999? (2) How did he come to be there? and (3) What happened to him there?
Can we look at these one at a time?...the starting point for the case is the presence of blood in that house...So what does the presence of Barry Wallace's blood tell us? Surely, on any view, it tells us one of two things [elaborated upon by the Advocate depute, who then continued]...how could [the blood] be transferred to so many different locations in the house? ...Are we to assume then that having wiped his clothes over the mattress and the bed base that somehow he manages to wipe some more of it onto the carpet at a completely different part of that room? Did he lie down on the floor to do this or something? How can it be done?
The next question then comes to be this: how did Barry Wallace come to be in the house of William Beggs?...
Now why would they have met up just because they were both in the city centre of Kilmarnock at that kind of time in the morning? The answer to that comes from Kenneth Petrie, who's now dead [the Advocate depute reminded the jury of the contents of Mr Petrie's statement, and continued]
... And what I've just discussed with you is not the only evidence on this. Richard Bache is not dead and he did give evidence. ...Do you remember [Mr Bache] giving evidence? He was a university lecturer of some sort ... What did you make of Mr Bache?...
...the third question is what does the evidence tell us about what happened to Barry Wallace at that flat? The post-mortem examination tells us that he was handcuffed while he was alive, and then he was anally penetrated while he was alive...The injuries tell you that he struggled..."
And there are other passages involving similar rhetoric.
[67] Posing a rhetorical question and thereafter suggesting the answer to it is a recognised and legitimate oratorical technique in a criminal trial. That was indeed the technique adopted by the Advocate depute at various points in the course of his jury speech. Manner of presentation and delivery of a jury speech is essentially a matter for the counsel undertaking the task.
[68] In our view, looking to the context within which the trial Advocate depute uttered the words "why did you do that" as part of the sentence italicised in the quotation from the transcript set out in paragraph [62] above, it is plain that it is an utterance which forms part of the general rhetorical approach adopted by the Advocate depute. On the face of the transcript, it is unobjectionable. But we are told, and we did not understand it to be disputed by the Solicitor General, that it was accompanied by some gesture towards the appellant in the dock. While we do not know the precise nature of the gesture, and while we would not wish to be taken as encouraging the deployment by prosecutors or indeed defence counsel or solicitors of melodramatic gestures to supplement their oratory, (gestures not being a matter free from difficulties of interpretation and not recordable in a form amenable to review by the appeal court) we are not persuaded that in this case the gesture made by the trial Advocate depute should be construed as a comment by the prosecutor on the failure of the appellant to give evidence, let alone a comment of that nature made "without restraint". It is important to appreciate that nowhere in the words spoken by the Advocate depute was there any reference to the appellant's having had the opportunity of giving evidence to provide an answer to the Advocate depute's rhetorical question and having failed to do so. The trial judge in his charge to the jury underscored the need not to draw any adverse inference from the appellant's not having given evidence.
[69] We would add, for completeness, that the gesture was, in our view, skilfully responded to by defence counsel in his jury speech in the following way:
"Ladies and gentlemen ... you will get no tricks from me, I don't do tricks. I don't turn to the dock in a dramatic planned gesture and say, 'Why did you do that?' Nothing like that. So if you're expecting anything like that you're going to be disappointed, I don't do that. Nor, ladies and gentlemen, will I try to shock you or frighten you into an acquittal. I'm not going to do that. This case has many horrific elements. I am not going to take those and take the sentiments that they will evoke in you and try and turn them for my purpose. I'm not going to do that. I'm going to look at the evidence and see what it actually does prove and, thereafter, it will be for you to decide."
[70] In short, we are unable to see that anything in the Advocate depute's conduct, whether oral or gestural, can be said to have given rise to a miscarriage of justice. We are therefore unable to detect any substance in this ground of appeal.
(IV) - SEARCH WARRANT
Introductory
[71] The ground of appeal with which this chapter is concerned is ground of appeal 3, which is in these terms:
"The Trial Judge erred in law in permitting evidence to be led at the Trial looking behind an ex facie valid search warrant, and further by restricting the admissibility of any evidence to the text of the warrant when executed and refusing admission of evidence of the grounds upon which it was granted.
Esto the Trial Judge was correct in allowing such evidence to be led, he should have allowed evidence to be led of all matters relating to the grant of the warrant.
Further and separately, the trial judge erred in refusing an adjournment in the trial for the purpose of allowing the appellant to seek suspension of the warrant. Had the appellant been able to challenge the validity of the warrant in respect of the basis upon which it was granted, either at trial or in suspension proceedings, then the warrant would have been suspended or deemed invalid and accordingly no evidence recovered pursuant to the purported warrant would have been admitted".
[72] The circumstances underlying this ground of appeal are as follows. During the trial, the Crown sought to lead evidence of a search on Friday 17 December 1999 by police officers of the appellant's house at 2B Doon Place, Kilmarnock. The defence objected to the leading of that evidence on the basis that the search warrant upon which the Crown relied, Crown production No. 57, did not authorise a search of that house but was instead warrant for the search of the appellant's garage at 2 Dee Avenue, Kilmarnock. The trial judge ultimately rejected the defence arguments. He gave an opinion, reported as HM Advocate v Beggs 2002 SCCR 62.
[73] The document, Crown production No. 57, contains typed or printed text, which typed or printed text constitutes a petition dated 16 December 1999 by the procurator fiscal seeking a warrant to search, put briefly, the appellant's house at 2B Doon Place, Kilmarnock and text constituting the docquet by the sheriff granting warrant, which is signed by the sheriff, whose name has been inserted in manuscript in the normal place envisaged by the typed or printed text for that manuscript insertion. However the document also contains writing and markings in pencil bearing to indicate alterations to the printed text. The trial judge described some of the pencil alterations in paragraph [10] of his opinion as follows:
"...there appear numerous additions, deletions and interlineations ...which have all been written in pencil. In particular, in one instance, changes appear to have been intended by the writer in pencil, which had then been revoked by the word 'stet', which I take to mean the word 'stetit', it stands. In two instances there have been written in the margin, not the body, of the document, what appears to be the date '17 December' adjacent to the date 16 December 1999, appearing in the printed text as the date of the petition and warrant, although it is to be noted that those printed dates have not been deleted. In two out of three of those parts of the petition where the premises involved are described, the printed description has been deleted and an interlineation, number 1, has been inserted. This refers to '... the lock-up or garage premises rented and occupied by WFIB, at 2 Dee Avenue, K'k'. This interlineation itself contains a deletion and alteration and is so worded that, with the associated deletion, the resulting text is ungrammatical, or defective in syntax. Furthermore, the name of John Mitchell [Detective Inspector John Mitchell who led the team of police officers conducting the search of the appellant's house at 2B Doon Place] has been deleted and, adjacent to the deletion, has been written the name 'Kevin McQueen'. The word 'Ayr' has been deleted at this passage and 'Kk' substituted. In the fourth and third last lines of the crave of the petition, the words describing the premises involved, appearing in the printed document, have been deleted and an indication given that there is to be substituted an interlineation, number 2. However, the pencil writing discloses the existence of no such interlineation. In the margin beside the signature of the procurator fiscal there appears the letters 'WJA' and 'PPFD', the significance of which is obscure, so far as I am concerned. Finally, at the bottom of the petition there has been written the words 'DC Kevin McQueen, Kilmarnock' in a position where those words do not appear to relate naturally to any particular part of the document".
The judge also notes in paragraph [2]:
"It was plain from the document itself that these pencil writings had not been authorised by the sheriff, who, had he been doing so, could have been expected to initial any alterations. There were no such authorising initials ..."
[74] From his consideration of the document the trial judge concluded that there was every indication of an irregularity having occurred. He further stated in his opinion, in paragraph [14], that "to describe the composite document as an ex facie valid warrant to search a lock-up or garage premises rented and occupied by the accused at 2 Dee Avenue, Kilmarnock, flies in the face of the visible facts and is an affront to commonsense". He resolved to allow parties to lead evidence in a trial within a trial as to the state of the document, Crown production No. 57, at the time of the commencement of the search on 17 December 1999 at the appellant's flat. The evidence given at the trial within a trial is recorded in the trial judge's opinion 2002 SCCR 62, paragraphs [15] to [22]. In brief outline it was as follows.
[75] Detective Superintendent John Geates stated that on 16 December 1999 he accompanied the procurator fiscal to Kilmarnock Sheriff Court with an application for a search warrant for the appellant's home at 2B Doon Place. The sheriff granted search warrant Crown production No. 57 in the officer's presence. The detective superintendent gave the warrant to Detective Inspector John Mitchell who was to lead the search the following day. The warrant did not have any pencil writings on it. Subsequently on 17 December 1999, a separate search warrant was sought in respect of a lock-up or garage premises at 2 Dee Avenue, Kilmarnock. The witness believed that Detective Constable McQueen had attended to that matter.
[76] Detective Inspector John Mitchell stated that the search of 2B Doon Place was executed under the warrant Crown production No. 57 (obtained from Detective Superintendent Geates). The search began at about 7.30 am on 17 December 1999. The occupier of the premises was not present. At that time, the warrant did not have any pencil writings on it. Shortly after 9 am Detective Inspector Mitchell gave the warrant to Detective Constable Kevin McQueen. Again at that stage there were no pencil writings on it.
[77] Mr John Watt, the area procurator fiscal at Kilmarnock, gave evidence about obtaining the warrant for 2B Doon Place from the sheriff. Mr Watt had prepared the petition seeking a search warrant. Crown production number 57 was that petition, but it appeared to have been defaced by pencil writings. Mr Watt explained that the principal procurator fiscal depute had accidentally mistaken the principal document for a copy, and had scribbled on it. Mr Watt acknowledged that to scribble on principal documents was bad practice.
[78] William John Douglas Andrew, the principal procurator fiscal depute at Kilmarnock, explained that the pencil writings were his. The search warrant Crown production No. 57 had been brought to the office by Detective Constable McQueen between 8.30 am and 9.30 am on 17 December 1999. Mr Andrew used the document, which he understood to be a copy, as a basis for the preparation of another warrant to search the appellant's garage at 2 Dee Avenue. He later realised that he had used the principal document. This had been a mistake on his part. A second search warrant had been obtained for the garage.
[79] Having recorded the evidence, the trial judge expressed his conclusion on it in paragraph [23] of his opinion thus:
"In the light of the foregoing evidence, which I had no hesitation in accepting, I reached the conclusion that, at the time of the execution of the warrant, Crown production number 57 for the search of the dwellinghouse at 2B Doon Place, Kilmarnock, occupied by the accused on 17 December 1999, that warrant did not bear the pencil writings to which I have referred. Accordingly I concluded that it constituted a valid warrant for the search of those premises ..."
[80] Having heard the trial judge's ruling that the warrant was a valid search warrant for the appellant's house at 2B Doon Place, counsel for the appellant moved the court to adjourn the trial so that the appellant could seek suspension of the warrant by way of bill of suspension. The case to be presented on behalf of the appellant was that the police and procurator fiscal had no sufficient basis for seeking a warrant: see paragraphs [24] to [31] of the trial judge's opinion. The trial judge heard submissions on the matter, and refused to adjourn the trial, commenting inter alia:
"[32]...Having heard what has been said in defence of the warrant, it is clear and not disputed that certain material was placed before the sheriff which supported the granting of the application and having regard to what is said in Renton and Brown, in the passage cited at paragraph 5.04 concerning applications for a warrant to search at common law by the procurator fiscal, which appears to me to be amply justified by what is said in MacNeil, complainer, I am not persuaded that there has been shown a prima facie case of invalidity of the warrant, such as might be raised in a bill of suspension.
[33] In any event, whether an adjournment for the contemplated purpose is to be granted in the course of a trial is plainly a matter for the exercise of my own discretion. While there may be cases in which the granting of such an adjournment would be appropriate, I have not been informed of any case in which that course has actually been followed. In any event, the present trial has now been running for many days. It is far from clear how long an adjournment for the purpose of the bringing of a bill of suspension would require to be. Moreover, it is obvious that the granting of the adjournment for such an uncertain period would be highly disruptive, so far as the jury is concerned, in a trial which is plainly of importance. Having regard to the fact that the issue sought to be raised in a bill of suspension can, if appropriate, be raised in the course of any appeal which may follow any conviction in this trial, it appears to me that no injustice would be done to the accused by the refusal of the present motion."
[81] Having disposed of all the arguments, the trial judge repelled the original objection to the warrant and permitted evidence of the search of 2B Doon Place to be led. Significant evidence was found during that search, including blood of the deceased on the mattress in the appellant's spare room; a handcuff key; a syringe and needle; signs that the spare room had been redecorated; and Scandinavian Seaways bags similar to the bag in which the deceased's head had been found.
[82] The argument put forward in respect of this chapter of the appeal was in two discrete branches. The first was concerned with the decision of the trial judge to repel the defence objection to the leading of the evidence of the search of the appellant's house. The second branch was concerned with an exercise which both parties and the trial judge considered might be open on appeal, namely an examination of the soundness of the sheriff's decision, on 16 December 1999, to grant the search warrant.
Branch 1 - refusal of the defence objection
[83] On the first branch counsel for the appellant contended that a court should not review or go behind a prima facie regular warrant. He renewed the submission advanced to the trial judge that the document comprising Crown production No. 57 contained all the necessary constituent elements for a valid search warrant of the garage, namely a date, the address of the garage, and the sheriff's signature, and was thus an ex facie valid warrant for the search of the garage. The circumstances in the present case were very different from cases in which, for example, a signature was lacking. There was nothing to suggest an impropriety: cf Aziz v HM Advocate 1998 SCCR 736. On the face of the document, there was nothing which justified the trial judge holding a trial within a trial. The document as it existed was sufficiently coherent, albeit with unusual features, and should have been treated as a valid search warrant for the garage and thus evidence of what was recovered in the search of the house was inadmissible.
[84] In his reply on this branch of the argument, the Solicitor General contended that the printed words of the warrant Crown production No. 57, taken on their own without the pencil alterations, together with the signature of the sheriff, constituted an ex facie valid warrant for the search of 2B Doon Place, Kilmarnock. The pencil alterations raised a question - not necessarily of an impropriety (as in Aziz v HM Advocate 1998 SCCR 736), but of some form of irregularity: cf the trial judge's comments at paragraph [14] of his Opinion. The handwritten, pencil changes took matters beyond the ordinary. For the trial judge to ignore the state of the warrant would be an abrogation of his duty as a judge to see that the appellant received a fair trial. In all the circumstances it was appropriate that the judge should have allowed exploration of the circumstances in which the warrant had come to be in that state, and should have allowed a trial within a trial: Herd v HM Advocate 1999 SCCR 315. In relation to the material placed before the sheriff, only the appeal court could look behind a warrant to see whether sufficient information had been provided, and whether the appropriate test had been applied. Thus the trial judge was correct not to investigate those matters during trial. He was also correct not to adjourn the trial for an indefinite period with unavoidably detrimental effects. The appellant was not prejudiced as he was able to raise the same matters on appeal: HM Advocate v Rae 1992 SCCR 1.
[85] In our opinion, for many and obvious reasons the trial judge was correct to refuse to accept the contention that the pencil-marked document, Crown production No. 57 was an ex facie valid warrant for the lock-up garage at 2 Dee Avenue, Kilmarnock, and not the dwelling at 2B Doon Place. First, the pencil-marked document is not clear and precise on its face as authorising search of the garage, even were account to be taken of the pencil markings. There were obvious doubts and omissions in that attempted interpretation of the pencil marked document. Secondly, the pencil alterations and annotations have all the hallmarks of instructions to a typist, indicating that someone had used the document as a draft for another document. For example, "stet" is a conventional draftsman's instruction to ignore a deletion and allow the words as they exist to stand. "K'k" appears to be an abbreviation, no doubt to be understood by the typist to mean "Kilmarnock". Alternative dates and names pencilled on the document were presumably to be inserted in place of existing dates and names. Interlineations indicated that new text was to be inserted (although the text for interlineation number 2 is missing). Thus the whole appearance of the document is of the typed text being used as a basis for a draft of another document. Thirdly, as the trial judge remarks, no sheriff would have signed such a document in its current pencil-marked state. (Indeed it is clear from the sheriff's report that the document which he signed did not bear the pencil annotations and was a clear, typed, tidy, and altogether intelligible document). We therefore consider that the trial judge was correct to regard the pencil-marked warrant contained in the productions in the criminal process over which he presided as extraordinary and clearly exhibiting the occurrence of an irregularity of some sort. Whether one terms the making of pencil marks an impropriety (the phraseology used in Aziz v HM Advocate 1998 SCCR 736) or an irregularity does not appear to us to be important. On either view, something irregular or improper had occurred and we are satisfied that the trial judge was well entitled to explore, in a trial within a trial, how and why the document came to bear those markings, and in particular the question whether or not the pencil markings were in place at the time the search was commenced. We would add that, as the trial judge recognised, such an inquiry does not involve "going behind the warrant" to examine or question the sufficiency of the basis upon which it was granted or the procedure followed before the magistrate or sheriff. It is directed towards ascertaining what may have happened to the document after it has left the hands of the signing magistrate or sheriff. As was canvassed in the discussion before us, apart from what happened to Crown production No. 57, there are no doubt other possibilities whereby a perfectly good search warrant may come to be defaced in its later life after being used for the search for which it was granted, including indeed its being defaced after lodging as a production in the trial process.
[86] We therefore consider that the first branch of the argument for the appellant is unsound.
Branch 2 - the sheriff's grant of the warrant
[87] We turn now to the second branch, namely whether the sheriff erred in granting warrant for the search of the appellant's flat.
[88] In response to a request from this court the sheriff produced a report dated 31 July 2006, in which he states inter alia:
"On 16 December 1999, during the course of a busy criminal diet court, my clerk informed me that the procurator fiscal wished an urgent meeting. I left the bench and was presented with a petition for warrant to search. I met in chambers with the petitioner and the officer named in the application. In accordance with my practice, I sought and was provided with information upon which I was satisfied that the warrant should be granted. I then signed the warrant typed on the petition in the original form of that dated 16 December. The copy of that warrant [now] provided by the sheriff clerk [to assist in the compiling of a report for the appeal court] is, I presume, a photocopy upon which the petition has been altered after signature for use as a draft of a petition presented to me on the following day ..."
[89] No doubt unsurprisingly given the lapse of time, it is apparent from the report that the sheriff could remember little of the detail of the hearing. With a view to overcoming this, the appellant's lawyers were supplied with a typed, essentially contemporaneous attendance note prepared by the procurator fiscal, summarising the material laid before the sheriff. That attendance note is in the following terms:
"DEATH OF BARRY GEORGE WALLACE
ATTENDANCE ON SHERIFF RUSSELL IN RELATION TO PETITION FOR WARRANT TO SEARCH HOUSE OCCUPIED BY WILLIAM FREDERICK IAN BEGGS AND VEHICLES OWNED BY HIM OR OF WHICH HE HAD THE USE
On 16 December 1999, shortly after 4.00 pm, Will Andrew and I attended on Sheriff Russell with a warrant to search as above.
Sheriff Russell asked for justification and I informed him that the limbs and head which had been recovered were those of the missing Barry Wallace, and that the police had carried out a MO [modus operandi] profile with SCRO [Scottish Criminal Records Office]. The only suspect in Scotland turned out to be William Beggs, not only that, he lived in Kilmarnock.
The sheriff was advised of the information which the police had in relation to Beggs' previous conviction at Kilmarnock High Court, where he had picked up and intoxicated a young boy, who awoke to find Beggs cutting his leg. He thereafter jumped out the window to escape. The sheriff was also advised of the English conviction for murder and for wounding, and the fact that in relation to the woundings, Beggs had cut his victims. He was also advised that the flesh on the limbs had been cut in a similar way before the bones had been cut.
Mr Andrew advised the sheriff that in addition to the background information given above, Beggs is known to have left this country and gone to Ireland, and it is suspected is still there, the inference being that he has fled from this jurisdiction. I further advised the sheriff that we also suspected that the dismembered parts of the body had been taken by Beggs, in his motor car, to the places where they were disposed of, and that he is known to have driven one motor car to Ireland, left it there and returned on foot.
Finally I moved the sheriff to grant the warrant on the basis that the intrusion into Beggs private life was relatively minor compared to the very serious crime under investigation, and therefore that the balance of the public interest lay in granting the warrant.
The sheriff granted the warrant, which was passed to the police shortly thereafter for execution.
It is possible that the vehicle taken away by Beggs is still in Northern Ireland and, if so, the police have been asked to re-report for further discussion or instructions in relation to the execution of the warrant in Northern Ireland."
The note was initialled and dated by Mr Watt and Mr William Andrew.
[90] As is noted in the trial judge's Opinion, paragraphs [17] and [20], a Strathclyde Police subject report dated 16 December 1999 prepared by Detective Superintendent John Geates was given to the sheriff to read.
[91] Against that background of what was before and submitted to the sheriff, counsel for the appellant submitted that a search warrant was not to be granted lightly. There was a delicate balance between the public interest in the investigation and prosecution of crime, and the interests of the private individual. The question in the present case was whether the sheriff had been entitled to exercise his judgment as he did, and to grant the warrant. It was accepted that the police were investigating the circumstances of a murder, by definition a grave crime. But counsel invited the court to conclude, on the basis of the attendance note and the lack of any detailed report from the sheriff, that it was not clear that the sheriff had directed his mind to the correct test as set out in Morris v MacNeill 1991 SCCR 722 and Hay v HM Advocate 1968 JC 40. The sheriff had to identify special circumstances, and to ascertain where the balance was to be struck between the gravity of the crime and the degree of intrusion into private life. But the information presented to the sheriff could not be regarded as meeting the test in Hay. Further, there were Article 8 considerations. The gravity of an intrusion into a person's private home was emphasised in Gillies v Ralph 2008 SCCR 887. In the present case, although the Human Rights Act 1998 was not in force at the time of the application for a warrant, the Scotland Act 1995 was in force, including section 57. The procurator fiscal's application to the sheriff was an "act" in terms of that section. Article 8 was a significant factor where the balance between public interest and private right was to be struck: cf Birse v HM Advocate 2000 SCCR 505. The sheriff appeared not to have been referred to the Convention. Thus it was not clear from the attendance note that the sheriff had applied his mind properly to the appropriate issues.
[92] In reply the Solicitor General submitted that it was clear from the procurator fiscal's attendance note and the police subject report that there had been ample justification for the warrant. The attendance note referred specifically to the balancing exercise between the public interest in the investigation of a very serious crime and the intrusion into the private life of an individual. That balancing exercise was compliant with Article 8 of the Convention. The sheriff had thus clearly been directed to the correct issues. Moreover the sheriff had been advised of the modus operandi, antecedents and habitual behaviour of the appellant as known to the police. He had been told that the police database search had produced only one person in Scotland having the same modus operandi, namely the appellant. He was informed that the appellant resided in Kilmarnock (the deceased's home town, where he was last seen alive). Against that background, the Solicitor General submitted that the sheriff had been correct in deciding that the balance swung in favour of the public interest. The factors put before the sheriff included the seriousness of the crime, a clear course of conduct on the part of the appellant, the fact that the search of the appellant's home would be a relatively minor intrusion, and the fact that evidence might disappear or degrade with the passage of time. In the result therefore the sheriff plainly achieved the correct balance between public interest and private rights and was well entitled to grant the warrant.
[93] For our part we note that principles respecting the granting of search warrants are discussed in Hay v HM Advocate 1968 JC 40. In delivering the opinion of the court the Lord Justice General (Clyde) said, at page 46:
" ...even before the apprehension of the accused [the police] may be entitled to carry out a search of his premises or an examination of his person without his consent if they apply to a magistrate for a warrant for this purpose. Although the accused is not present nor legally represented at the hearing where the magistrate grants the warrant to examine or to search, the interposition of an independent judicial officer affords the basis for a fair reconciliation of the interests of the public in the suppression of crime and of the individual, who is entitled not to have the liberty of his person or his premises unduly jeopardised. A warrant of this limited kind will, however, only be granted in special circumstances. The hearing before the magistrate is by no means a formality, and he must be satisfied that the circumstances justify the taking of this unusual course, and that the warrant asked for is not too wide or oppressive. For he is the safeguard against the grant of too general a warrant."
In its opinion in Morris v MacNeill, the court reiterated that in the exercise of the discretion to grant a warrant, it was necessary to balance the public interest in the investigation of crime against the private interest of the individual concerned.
[94] We have set out above the whole terms of the attendance note prepared by the procurator fiscal following his appearance before the sheriff to present the application for the search warrant. In essence, the basis given for suspicion having fallen on the appellant was primarily information held by the police of previous convictions of the appellant and what might be termed police intelligence of other incidents in which there was information considered by the police as implicating the appellant but in which the evidence had been insufficient to allow prosecution. That was supplemented by such suspicions as were raised by the appellant's movements to and from Northern Ireland. The police intelligence to which we have just referred was set out in the subject report passed to the sheriff for his perusal, but the extent to which he studied its detail is not clear. In the circumstances we do not consider it necessary or useful to set out all those details. The report's author set out a number of "common factors", the principal of which were that the victims in the incidents were young males allegedly taken by the appellant to his accommodation; they were allegedly either drunk or plied with drink; they were allegedly generally homosexual; and, allegedly, they had been wounded by cutting with a sharp instrument.
[95] It was at times unclear whether it was suggested by counsel for the appellant that it was illegitimate or inappropriate for the prosecuting authorities to base suspicion on a police analysis of modus operandi. In so far as that may have been suggested, we reject the suggestion. In an appropriate case, the police and the prosecutor are, in our view, entitled to proceed upon the basis that information on a person's criminal history and analysis of modus operandi places that person in the position of a suspect. Clearly, it is not necessary when seeking a warrant that the prosecuting authorities have evidence to establish guilt; the purpose of seeking the warrant to search the property or person of the suspect is with a view to getting evidence helpful to prove the suspicion, or from the suspect's standpoint possibly eliminating him from that field of suspicion. In our view, the present case was one in which it was appropriate for the police and the prosecuting authorities to proceed upon the basis of previous criminal history (whether by court conviction or police intelligence) and a modus operandi analysis. Additionally, there was the information held respecting the appellant's movements to and from Northern Ireland.
[96] In view of those matters there was clearly a proper basis upon which the procurator fiscal sought the grant of the search warrant. The question then becomes whether in exercising his discretion to grant such a warrant the sheriff erred by applying the wrong test. A large thrust of the argument advanced by counsel for the appellant was that he did apply the wrong test. But we are unable to follow this thrust. It is apparent from the procurator fiscal's attendance note that the sheriff was reminded of, and addressed on, the need to balance the public interest in the investigation of crime against the private interest of protection against unwarranted interference in the suspect's private life. Given the obvious seriousness of the crime under investigation and the relatively minor interference with the privacy of the appellant's life in his apartment in Kilmarnock, we consider that the sheriff's decision to grant the warrant cannot be assailed. He was plainly entitled to exercise his discretion in the way which he did.
[97] Counsel for the appellant advanced the further point that on the basis of the available materials the sheriff had not been specifically addressed on Art 8 ECHR. That may be so. But counsel was unable to submit to us any meaningful respect in which that Article required a different balancing exercise from that required under domestic law. We therefore find nothing material in this invocation of that Article.
[98] We therefore reach the conclusion that the attack advanced, as part of the appeal process, on the validity of the sheriff's decision to grant the warrant for the search of the appellant's flat is unsound and must be rejected.
[99] Accordingly, we are unable to sustain the ground of appeal with which this chapter is concerned.
(V) - SUFFICIENCY OF EVIDENCE
Introductory
[100] This ground of appeal - ground 8 - is in these terms:-
"The Trial Judge erred in rejecting a submission on the sufficiency of the evidence in relation to:
the allegation of assault by punching the deceased on the face;
the allegation of assault by penetrating the deceased's hinder parts;
the charge of murder;
any alternative finding in terms of culpable homicide". [Emphasis in original]."
The submission to which it refers was a submission made after the Advocate depute had addressed the jury in which counsel for the appellant invited the trial judge to give certain directions to the jury. As is indicated in the ground of appeal the submissions to the trial judge embraced four heads or chapters and in his submissions to us counsel for the appellant followed a similar structure.
[101] Before summarising counsel's detailed submissions under each of these heads it may be noted that counsel recognised that the case was essentially a circumstantial one and the approach of this court should be guided by paragraphs [31] to [39] of the opinion of the court in Al Megrahi v HM Advocate 2002 JC 99; 2002 SCCR 509. This was not a matter of contention, but, simply for convenience, we set out the terms of those paragraphs:
"[31] Since the Crown case against both accused was based entirely on circumstantial evidence, it is appropriate at this stage to make reference to the requirements of proof by such evidence, and what approach to it was open to the trial court. The rule that proof of guilt requires corroboration was reaffirmed in Morton v HM Advocate. At p 52 the Lord Justice Clerk (Aitchison), delivering the opinion of the court, described it as a firmly established and inflexible rule of our criminal law that (with certain statutory exceptions) a person cannot be convicted of a crime on the uncorroborated testimony of one witness however credible. On the same page, passages in Baron Hume's Commentaries on the Law of Scotland Respecting Crimes, vol ii, pp 383-384, were quoted with approval. In these passages Hume spoke of corroboration of the direct evidence of one witness by that of another, or by circumstantial evidence. He went on to speak of a case where all the evidence was circumstantial. In such a case, he said, it was not to be understood that two witnesses are necessary to establish each particular, 'because the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts'.
[32] So it was open to the trial court to hold the guilt of the appellant to be proved on the basis of circumstantial evidence coming from at least two independent sources. Before us, the Advocate Depute relied on three cases in support of two further propositions which he advanced. The first proposition was that in a circumstantial case it is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself; what matters is the concurrence of testimony. The second was that the nature of circumstantial evidence is such that it may be open to more than one interpretation, and that it was precisely the role of the trial court to decide which interpretation to adopt.
[33] The first case relied upon by the Advocate Depute was Little v HM Advocate. At p 61 the Lord Justice General (Emslie), delivering the opinion of the court, referred to an argument for one of the appellants in that case, that 'each of the several circumstances founded upon by the Crown was quite neutral', and said:
'The question is not whether each of the several circumstances "points" by itself towards the instigation libelled but whether the several circumstances taken together are capable of supporting the inference, beyond reasonable doubt, that Mrs Little in fact instigated the killing of her husband by MacKenzie.'
[34] The second case was Fox v HM Advocate in which the Crown had relied on circumstantial evidence as affording corroboration of the direct evidence of one witness. In the course of a passage disapproving of the decision in Mackie v HM Advocate that circumstantial evidence is corroborative only if it is more consistent with the direct evidence than with a competing account given by the accused, the Lord Justice General (Rodger) said at p 126F:
'[I]t is of the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt. If the jury choose an interpretation which fits with the direct evidence, then in their view - which is the one that matters - the circumstantial evidence confirms or supports the direct evidence so that the requirements of legal proof are met. If on the other hand they choose a different interpretation, which does not fit with the direct evidence, the circumstantial evidence will not confirm or support the direct evidence and the jury will conclude that the Crown have not proved their case to the required standard.'
This passage is, in our view, equally applicable where there is no direct evidence and the evidence is wholly circumstantial. In the same case Lord Coulsfield said at p 143E-F:
'[I]t seems to me to be wrong to try to divide cases into different categories by reference to the nature of the evidence which is relied on, and if there were a rule that each piece of evidence must be incriminating. I would find it difficult to see why that should not apply in every case. I do not, however, think that it is necessary that each piece of evidence, of whatever kind, should be incriminating in that sense. The proper approach, it respectfully appears to me, is already given by Hume, that is, that what matters is the concurrence of testimonies. Whether a single piece of evidence, or a number of pieces of evidence, are incriminating or not is a matter which can only be judged in the whole circumstances taking all the evidence together.'
[35] Thirdly, in Mack v HM Advocate, the Lord Justice General (Rodger), in delivering the opinion of the court, said at p 185C:
'There is nothing strange in discovering that circumstantial evidence may give rise to a number of possible inferences since that is one of the characteristics of evidence of that type. When presented with such evidence, the jury have to decide whether they draw the inference that the accused is guilty of the crime.'
[36] In our opinion these three cases, and the passages from them which we have quoted, support the propositions advanced by the advocate depute, with which we did not understand Mr Taylor to take issue. To these passages we would add one from King v HM Advocate, a case to which we have previously referred in another context. At p 342D-E the Lord Justice General (Rodger), delivering the opinion of the court, said:
'[I]t is by no means unusual to find that there is a body of evidence in a case which is quite inconsistent with the accused's guilt. Evidence supporting an alibi defence is necessarily of that nature and, while it is often possible for the Crown to undermine alibi witnesses on the ground perhaps that they are partial or untrustworthy, that is by no means always the case. In such a situation juries may none the less be satisfied of the accused's guilt beyond reasonable doubt on the basis of the Crown evidence and come to the view that they must accordingly reject the alibi evidence as wrong. The jury must consider all the evidence but, having done that, they can reasonably reject the alibi evidence precisely because it is inconsistent with the Crown evidence which they have decided to accept.'
The same applies to the trial court, which was entitled to reject evidence which was inconsistent with the guilt of the appellant precisely because it was inconsistent with circumstantial evidence pointing to his guilt which it has decided to accept."
With that accepted basis as to the nature of circumstantial evidence and the court's approach to it, we advert now to the particular submissions in the present appeal.
Submissions for the appellant
(a) Punch him on the face
[102] The first head of this ground of appeal involves the contention advanced by counsel for the appellant that there was insufficient evidence to entitle the jury to convict the appellant of that part of the charge which alleged that he punched the deceased on the face and it was submitted that accordingly the trial judge erred in refusing the motion made at the trial that the jury be directed to delete that part of the libel.
[103] Counsel for the appellant accepted that there was clear evidence that Mr Wallace had sustained a pre-mortem injury to his face. However, he submitted, there was insufficient evidence to establish either that the injury was caused by the appellant and or that that it was caused by a punch. There being, of course, no direct evidence that Mr Wallace had been punched by the appellant, counsel observed that the Crown's approach required to be based on circumstantial evidence. On that basis there was no proper material enabling the jury to infer that the injury to Mr Wallace's face had been inflicted by the appellant punching him.
[104] In advancing that submission counsel for the appellant emphasised the body of evidence (more fully summarised in the narration of the Crown submissions: paragraph [114] below) to the effect that Mr Wallace had been seen to stagger and fall at about 0100 hours on Sunday 5 December 1999 as he set off on foot towards the town centre of Kilmarnock; that shortly thereafter he was involved in an altercation with a friend Graeme Boax; and that in the course of that there had been some form of exchange of blows which included one to his face. In particular reference was made to this passage on p 8 of the transcription of the evidence of Graeme Boax:
"You hit him, alright. With what? - My fist.
Where did you strike him? - Just on the face I think.
Do you know where? - No. Aye, on the right hand side of his face."
There was thus a body of direct evidence offering the inferential conclusion that the injuries to Mr Wallace's face were attributable either to the blow delivered by Mr Boax or to Mr Wallace's having fallen in the street.
[105] Counsel then referred to the evidence from the pathologist, Dr McFarlane, to the effect that the injury to the face of Mr Wallace need not at the time of its infliction or in the period shortly thereafter have produced any visible signs of injury (see: Volume 4 Dr McFarlane at pp 72 and 77). Therefore, although there was a body of eyewitness evidence that Mr Wallace was uninjured following the fall and following the altercation with Mr Boax, the value of that was reduced, if not negated, by that expert evidence.
[106] In essence, given the evidence of the fall in the street and the altercation and dispute with Boax at the taxi-stance the jury could not hold that the appellant had inflicted Mr Wallace's facial injury and should have been directed accordingly. The factors relied upon by the Crown to prove that the injuries to Mr Wallace's face had been inflicted by the appellant lacked the necessary coherence to support the inference that those facial injuries had been caused by the appellant.
[107] The second ground of attack under this head was to the effect that the Crown had tied itself in the indictment to the facial injury having been caused by a punch. There was, counsel submitted, insufficient evidence to entitle the jury to conclude that, if the facial injury were not sustained by the fall or the squabble with Boax, to which reference has been made, it was inflicted by a punch.
(b) Anal penetration
[108] Although it was submitted to the trial judge, and suggested in the appellant's written outline, that there was an inadequate evidential basis to entitle the jury to hold that the appellant had penetrated Mr Wallace's anus with his private member, in the course of the oral submissions made to us counsel for the appellant accepted that there was an evidential basis upon which the inference of penile penetration could be drawn, namely the expert evidence given by the medical witnesses. But assuming acceptance of penile penetration, the question then became whether there was evidence demonstrating that such penetration was without consent on the part of the deceased. Under reference to Cordiner v HM Advocate 1991 SCCR 652, counsel submitted that the averments of penile penetration, although contained within the single charge on the indictment, amounted to a distinct charge of sodomy (and were so treated by trial counsel and the trial judge). While it was recognised that in a charge of assault by various actings it was not necessary for the Crown to corroborate each element of the assault, the averment of penile penetration of the hinder parts required specific evidence of absence of consent; and that evidence, he submitted was lacking.
(c) Murder
[109] In relation to this branch of his argument counsel submitted first that the Crown had failed to establish that the death of Mr Wallace had been caused by the assault set forth in the charge.
[110] Counsel observed that the Crown faced difficulties in relation to the question of the cause and the mechanism of death; neither of these were known and in particular the Crown was unable to establish with any degree of precision the cause of death. In his address to the jury the trial Advocate depute offered alternative possibilities. However, it was submitted that the evidential bridge which the Advocate depute had sought to set up (at pp 31 to 35 of his speech to the jury) in order to establish that Mr Wallace had been killed by the appellant did not properly exist.
[111] In developing that contention counsel for the appellant referred to certain passages of the evidence given by Dr McFarlane wherein she dealt with various issues relating to the cause and mechanism of death. These included pp 84 to 88 where Dr McFarlane dealt with the anal injuries sustained by Mr Wallace; pp 91 to 100 in relation to possible mechanisms of death and the issue of asphyxia and heart failure; p 112 where Dr McFarlane differentiated between cause and mechanism of death; and pp 126 to 145 in the cross-examination of Dr McFarlane. Lastly, and in particular, counsel for the appellant referred to the following passage in cross-examination at pp 208 and 209:
"So if we then take the present set of circumstances that are alleged by the Crown, that are alleged by the Crown, and we assume that various things were in fact done to Barry Wallace and were done against his wishes, we have established for the benefit of the jury, have we not, firstly, none of the force that was used was of itself potentially lethal, correct? - Yes
There was nothing here to suggest the use of the kind of force that you see day and daily where somebody intends serious harm or obviously doesn't give two hoots what harm they do, such as stabbing in the chest or battering on the head with a hammer. Nothing of that sort here? - No.
Each and all of these acts taken together without something else, they did not take the life of Barry Wallace, they did not kill him, correct? - No.
And whatever it is and whatever it was that intruded into the sequence of events that night and led to the death of Barry Wallace, but one explanation is that whatever did happen to him, whatever he was involved in, he may thereafter simply in a drunken state which the boy was in as we know lain face down in some sort of fashion on a bed to sleep it off and just die. Have I got that right? - In the circumstances of this particular case there are obviously quite a number of possibilities as we have discussed.
Absolutely? - The scenario of him having died of respiratory obstruction from being face down somewhere on a bed or whatever is one of the possible ways and that the alcohol contributed to that in lying there and not getting up is possible either as one factor or as one of other factors.
And in no clichéd sense but in a very, very serious sense, Dr, the bottom line is this: is that explanation for Barry Wallace's death as a possibility any more or less likely than any other? - It depends on other evidence. On my findings I cannot say.
So it is no more and no less? - I cannot exclude it as possible."
Counsel submitted that this passage in the evidence of Dr McFarlane was the critical point in her evidence and showed that the Crown had not fulfilled the evidential burden upon them in establishing that Mr Wallace's death was homicide. The trial judge ought therefore to have acceded to trial counsel's motion that the jury be directed that they could not convict of any form of homicide.
[112] The second branch of counsel's argument under this head may be summarised as being that, assuming a causal link between the sexual assault and the death, nothing in the nature of the assault (so far as established from the evidence of pathologists and the other medical witnesses) demonstrated a sufficiently significant degree of violence to amount to the wicked recklessness necessary for the mens rea of murder. While counsel accepted that post mortem actings by the assailant had been recognised as potentially relevant to the mens rea of the assailant, the Crown's reliance, in this case, on the dismemberment evidence was misplaced. The post mortem dismemberment was not sufficiently proximate. Further, as put by trial counsel, the moral depravity of the dismemberment could not substitute for proper proof of the mens rea for murder. Accordingly, the trial judge should have directed the jury that, assuming their satisfaction of the existence of the causal link between the sexual assault and the death, it was only open to them to convict of culpable homicide. Reference was also made to HM Advocate v Purcell 2008 JC 131; 2008 SLT 44; 2007 SCCR 520.
Submissions for the Crown
[113] In his response the Solicitor General accepted at the outset that the case was essentially circumstantial; therefore the Court required to have regard to the principles set out in Al Megrahi v HM Advocate. He also referred further to Fox v HM Advocate 1998 JC 94; 1998 SCCR 115 in the passages contained in the latter report of the opinion of the Lord Justice General at 126E-F and Lord Coulsfield at page 143 respectively; Mitchell v HM Advocate 2008 SCCR 469 and Gage v HM Advocate [2006] HCJAC 7 (unreported) at paragraph 75. It was in the very nature of circumstantial evidence that it is open to more than one interpretation and any individual adminicle may of itself be neutral in character. However, such neutral adminicles of evidence may gain incriminative potency when looked at as part of a picture as a whole. It was for the jury to decide what inferences to draw and regard had to be had to the whole facts and circumstances in deciding what a jury might properly draw by way of inference.
(a) Punch him on the face
[114] The Solicitor General submitted firstly that there was sufficient evidence for the jury to conclude that Mr Wallace's facial injuries were inflicted by means of a punch. He referred to the evidence of Dr McFarlane as to the nature and extent of the injuries to Mr Wallace's head - see: Crown Production 128 and transcript at pp 69 to 78, wherein (pp 74 to 75) Dr McFarlane confirmed that in her view the facial injuries were consistent with having been caused by a punch. The jury were accordingly entitled to conclude that Mr Wallace had been punched with resultant injury to his face.
[115] On the issue whether there was evidence entitling the jury to hold that the punch injuries had been inflicted by the appellant, the Solicitor General accepted the existence of a body of evidence relating to Mr Wallace' having fallen in the street and having been involved in a scuffle in the town centre at Kilmarnock. That evidence had come from the following witnesses:
(a) Anne Christine Lloyd who gave evidence to the effect that she had seen Mr Wallace fall over (p 46) but that he was not injured or bleeding, (p 50);
(b) Andrea Ann Lindley who described (p 62) Mr Wallace as
"having a bit of a fight. They weren't really hitting each other. It was just two drunk boys" (p 63). "It wasn't a violent fight or anything. Just pushing." She thought they were aiming blows at each other but did not know if they connected (p 64).
As far as she could see he was not injured or bleeding (p 68).
(c) Joyce Wilson described
"a kind of fight. It wasn't a fight as such. They were jeering at each other and just kind of...they stepped out from the queue and they were backing away along the bottom of the multi storey car park and like throwing punches at each other but I never actually seen any punches hitting either person" (p 80).
They were
"swinging punches but they weren't hitting each other and then Barry fell"(p81).
(He fell twice (p 82). He banged his head or face on the ground (p 90). She could not see whether he was injured (p 85).
(d) William John Douglas Wilson who said
"they were just kind of slapping each other. It wasn't really a fight. It was just kind of slapping."
He did not see any blows connecting: "more of a slap." He thought that Mr Wallace fell down twice (p 98.)
(e) Wesley Thomas Kirkland saw Mr Wallace at a time apparently after the fight. He did not see Mr Wallace to be injured. His face was not bleeding (p 108.)
(f) Graeme William Boax who described hitting the deceased with his fist on the right hand side of his face as a result of which the deceased fell (p 8.)
Then he described
"the two of us were flinging punches. We were drunk. Then I hit him again."
The punch landed on Mr Wallace's face and he fell again (p. 9). Mr Wallace did not appear to be injured and was not bleeding (pps. 14, 15 and 31.) He saw no bruising. (p. 30).
[116] The Solicitor General submitted that looking to this body of eyewitness evidence it could be said in summary that: there was no serious fight likely to have produced injuries of the extent and seriousness to Mr Wallace's face as spoken to by Dr McFarlane; there was no evidence of any bleeding about the face; Boax, the person with whom the deceased had been fighting, considered that he had not injured Mr Wallace; and looking to the whole of that evidence the behaviour of Mr Wallace was such that there was no evidence or indication that he was injured or in pain or required immediate hospital treatment.
[117] But, to be set against that evidence, was the other evidence that Mr Wallace was subjected to a violent assault at the hands of the appellant. There were a number of sources of such evidence, including:
(a). Dr Fernie, whose evidence was summarised by the Advocate depute in the course of his speech to the jury at p. 27. In terms of his report, to which Dr Fernie spoke, there were injuries to the wrists and ankles of Mr Wallace which were consistent with having been caused by handcuffs and in addition were consistent, in the witness' view, with having been caused in the course of an extremely violent struggle.
(b). There were the injuries to the rectal and anal area of Mr Wallace consistent with a violent sexual attack upon Mr Wallace, as spoken to by Dr McFarlane.
(c). There was the evidence of a puncture mark on the right upper arm of Mr Wallace. There was no reason for Mr Wallace having injected himself. The positioning of the puncture mark was consistent with his having been tied up at the time at which it was inflicted.
(d). There was evidence of fingertip bruising to the left shin.
[118] Thus the jury had before them evidence of a violent attack which, on the basis of other evidence including the finding of blood from the deceased in the appellant's flat, was attributable to the appellant. So, as respects the facial injuries alone, there were two possible explanations. But in considering those possibilities the jury were entitled to take into account all the other injuries shown to have been sustained by the deceased at the hands of the appellant and were also entitled to have regard to the minor nature of the altercation or fight and the deceased's fall described by eye witnesses. The jury was entitled to decide that the facial injuries were inflicted by a punch, from the appellant, in the course of that assault by the appellant, rather than the earlier episode.
(b) Anal penetration
[119] In submitting that there was sufficient evidence from which the jury could properly infer penile penetration the Solicitor General referred first to the evidence of Dr McFarlane (pp. 84 to 88) to the effect that the absence of any internal tear or laceration in the anus and rectum pointed to penetration by a smooth object, such as a penis. There was also evidence from Dr Tavadia that the bruising injuries to the anus and rectum could well be from forcible penetration by the penis and were unlikely to result from penetration by an instrument. Additionally, he invoked the terms of the statement noted from Kenneth Petrie as indicating the appellant's homosexual proclivities and the evidence of Richard Bache respecting the appellant's having boasted about a sexual conquest on the night in question. Further, there was also the evidence of a semen stain, with a DNA profile matching that of the appellant (evidence of Martin Fairley, pp. 41 & 42) found on the mattress of the bed in the spare bedroom in which quantities of the blood of the deceased were found. Drawing all of these factors together the Solicitor General submitted, that the jury were entitled to conclude that the appellant had penetrated Mr Wallace's hinder parts with his penis. Further, they were entitled to conclude that this penetration was not consensual and therefore constituted an assault.
[120] In advancing the latter submission the Solicitor General pointed first to the background evidence to the effect that Mr Wallace was not homosexual given by his father, Ian Wallace, and his friend, Lewis Caddis. In addition there was evidence from those two witnesses to the effect that Mr Wallace did not have friends in their mid-thirties and was not the sort of person who would go to the house of someone he did not know. Taking these factors as a starting point they supported the inference that the deceased would not voluntarily have gone with the appellant, a stranger, who was 36 at the relevant time, in order to have consensual sexual intercourse with him.
[121] There was then the evidence as to what had happened to Mr Wallace within the appellant's flat. There was evidence from which the conclusion might be drawn that Mr Wallace was restrained while in the flat with handcuffs being placed onto his wrists and ankles, the injuries suggesting that the deceased was struggling. (Dr McFarlane at pp 33 to 40 and pp 55 to 56.) In addition Mr Wallace had sustained various other bruises and abrasions including bruises on his left leg consistent with fingertip bruising caused whilst restrained. (Dr McFarlane at pp 49 to 52, pp 56 to 57.) The conclusions of Dr Fernie at paragraph 7.3 of his report (as respects the handcuff injuries to wrists and ankles) were as follows:
"The degree of injury found suggests that there was an extremely violent struggle and the abrasions on the skin are much more than those that I normally see even when intoxicated persons forcibly resist arrest."
This evidence thus supported the inference that the deceased was handcuffed against his will and struggled against this restraint in a particularly forceful manner.
[122] The extent of the injury to the deceased's anus and rectum was also inconsistent with consensual sexual intercourse. Dr McFarlane (p 88) said that the bruising was consistent with force having been used. Dr Tavadia also spoke of there being forcible penetration. Dr Fernie stated in his conclusion at paragraph 7.4 of his report that the "bruising to the anal and rectal regions is compatible with a sexual assault of considerable force". Earlier in his evidence he had made reference to paragraph 6.10 of his report:
"The anal findings at post-mortem examination where there was bruising around the anus and rectal mucosa is in keeping with injury from considerable to severe blunt force trauma such as I have seen in cases of acute sodomy. Certainly, many of the cases in which I am asked to examine living victims of this type of sexual assault have minimal or no injury apparent and this is a generally accepted view."
[123] The Solicitor General further adverted to the needle puncture mark on the inner side of the right arm of the deceased. This was not at a site which one would associate with a therapeutic injection (Dr McFarlane, pp 17 and 18). There was no reason for the deceased requiring an injection (father p 7). The pathological evidence was also that there was no obvious explanation for the needle mark (Dr McFarlane, p 21). The mark was in an area that would have been exposed if Mr Wallace's hands had been restrained behind his back (Dr McFarlane, p 19). The injury was consistent with having been caused by a needle and a syringe was found in the appellant's house (Dr McFarlane, p 20). While he accepted that there was no evidence to explain what, if anything, was injected into the deceased, the Solicitor General submitted that this adminicle of evidence was also consistent with the deceased having had things done to him against his will whilst in a vulnerable state namely while his hands were restrained behind his back.
(c) Murder
[124] The Solicitor General submitted that the jury were entitled to conclude that the death of the deceased had been caused by the appellant. Mr Wallace was a healthy young man and there was no evidence that death had been caused by natural causes. In light of the forensic scientists' evidence confirming the presence of Mr Wallace's blood in the appellant's apartment, the jury were entitled to conclude that Mr Wallace had died there in the company of the appellant. While the precise mechanism by which Mr Wallace died could not be determined by the pathologists, it was clear that he had been the victim of a violent sexual assault at the hands of the appellant. Although the deceased had ingested a considerable quantity of alcohol, such that his ability to defend himself was impaired, the evidence (Dr Oliver) was that the alcohol level was on the low side to have caused death by itself. In her evidence Dr McFarlane (pp 93 to 99) identified two possible mechanisms of death (1) suffocation during the sexual attack and (2) asphyxia through postural restraint during the sexual attack. This was not speculation on the part of the pathologist; rather having regard to all of the injuries the pathologist gave two possibilities as to the cause of the death and it was therefore a matter for the jury whether they accepted that evidence. The approach of the trial judge, set out at pp 19 to 20 of his report could not be faulted.
[125] On the issue whether there was evidence entitling the jury to convict of murder, as opposed to culpable homicide, the Solicitor General submitted that the jury were entitled to infer wicked recklessness and thus the mens rea to return a verdict of murder. The evidence of the injuries suffered, and the inferences drawn from them by the expert witnesses, in themselves would be sufficient to permit the jury to conclude that the appellant had displayed such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences of the assault on the deceased; the appellant had used serious and reckless violence and the jury were thus entitled to conclude that he had had no regard for the consequences.
[126] Further, in considering whether the Crown had established the appropriate mens rea for murder, the jury were also entitled to have regard to the post-mortem actings of the appellant. In submitting that it was legitimate to look to post mortem, or posterior conduct, as reflecting on both the guilt and the mens rea of the accused assailant, the Solicitor General referred to Gardiner v HM Advocate 2007 SCCR 379, para [25]; McArthur v HM Advocate (unreported) [2006] HCJAC 83 at para [36]; and Dickson on Evidence, Vol I, p74, para 94.
[127] The Solicitor General emphasised that the process of dismembering the deceased was particularly gruesome; each limb had been sawn part way through and then snapped off (Dr McFarlane's evidence at pp 16, 28, 29, 41, 44 and 48). In relation to the lower right leg, the appellant had sawn about one third of the way through before giving up and sawing completely through at a different point (Dr McFarlane at p 44). The head was severed from the torso by the appellant using a number of distinct cutting movements with a sharp instrument such as a knife, and also using a saw to sever the bone (Dr McFarlane at pp 63 to 69). The body parts were then, with the exception of the head, dumped by the appellant in Loch Lomond during Sunday 5 December. For whatever reason, the appellant did not dispose of the head at the same time. It was put in a plastic bag and disposed of in a way that resulted in it being found on Barassie Beach near Troon on 15 December. Those post-mortem actings when taken together with the nature of the assault as described in the evidence combined on any view to show the appropriate mens rea for murder, rather than culpable homicide.
[128] In addition the Solicitor General referred to the terms of the telephone call to the appellant by Richard Bache on Sunday 5 December and submitted that such nonchalance also pointed to the depravity of the appellant in relation to his actions.
[129] Lastly the Solicitor General submitted that an appeal court could look at the whole evidence and was not constrained by the approach of the Advocate depute. Reference t was made to Poole v HM Advocate 2009 SCCR 577 at paragraph 16. Further, Cordiner v HM Advocate was very fact-specific and unusual in its circumstances. The indictment in that case contained three separate and distinct charges set out as sub-heads of a single charge and all that the court was held was that the trial judge was wrong to direct the jury that this was a single charge. Nothing further could be taken from the case of Cordiner, which contained nothing of relevance to the present appeal.
Discussion
[130] As noted at the beginning of this chapter, the case against the appellant being a circumstantial one, it is appropriate to have regard to the principles relating to the sufficiency of evidence in such cases as set out in Al Megrahi v HM Advocate at paragraphs 31 to 36 and in Fox v HM Advocate. There was no dispute or difference between parties on this aspect of the appeal. In considering the competing contentions advanced to us it is convenient to follow the subheads, or branches, adopted by both sides in their submissions on this chapter of the appeal.
(a) Punch him in the face
[131] In our opinion the submission to the effect that there was insufficient evidence to allow the jury to hold that the facial injuries had been caused by a punch is unsound. The nature of the facial injuries was before the jury; and they had the interpretative, expert evidence of Dr McFarlane to the effect that those injuries were consistent with an impact such as could have been produced by a punch (p 75). Accordingly there was a basis in the medical evidence from which a jury could draw the inference that the facial injury had been caused by a punch. Whether the jury accepted that evidence and were prepared to draw the inference was a matter for them, but in our view they were entitled to do so.
[132] As regards the contention that there was insufficient evidence to identify the appellant as having been the person who inflicted the punch, it is equally our opinion that this submission is not well-founded.
[133] In our view one must start from the fact that there was clear evidence, from inter alia the finding of quantities of blood from the deceased within the appellant's flat, the internal injuries to the anus and rectum, and the other injuries noted on autopsy, from which the inference could be drawn that the deceased had been subjected to a violent attack at the hands of the appellant. The injuries to the face of the deceased included, on the left side, fractures of the upper jaw, eye socket and cheekbone. (There was also some minor injury to the right side of the face). Absent evidence of any other event capable of provoking those injuries, there was clearly a sufficient basis whereon the jury could hold that the facial injury was attributable to the acts of the appellant, as part of the assault within the flat at 2B Doon Place. Subject to the point taken respecting the mechanism whereby the facial injuries in question were inflicted, which we have just rejected, it was not contended that, in the absence of such other evidence, it was not open to the jury to hold that all the facial injuries were the result of the assault alleged in the libel to have been perpetrated by the appellant.
[134] So, in our view, the question is whether the other evidence - namely the evidence relating to the deceased's scuffle or fight with Graeme Boax, and his having previously fallen in the street - was so reliable, powerful and compelling as to make it unreasonable for any jury to infer that the facial injuries were caused as part of the other, serious assault suffered by the deceased at 2B Doon Place. In other words, whether that evidence was such that in their interpretation of the circumstantial evidence, which in its nature may be open to more than one interpretation, the jury were necessarily foreclosed from an interpretation attributing the facial injuries to the appellant's actings.
[135] We consider that the answer to that issue is in the negative. It is unnecessary to rehearse the evidence of the Boax encounter, or the earlier falling in the street. Its general tenor was indicative of the deceased's not having sustained any significant injury. Boax did not consider him to have been injured (quantum valeat Boax's evidence was that he punched the deceased on the right hand side of his face, whereas the serious facial injuries to the deceased are on the left). Subsequently to both the fall and the incident with Boax, the deceased went on to the entrance to a nightclub and was seen by Mr Kirkland, apparently uninjured. By contrast, Dr McFarlane's view was that, while not life-threatening, the facial injuries - involving fractures of the underlying bone structures - were such that the recipient of those injuries would be likely to go to hospital to seek treatment. The tenor of the evidence of the Boax encounter, and previous events, was plainly not such as to disable the jury, as part of their assessment of the whole evidence and the whole picture disclosed by it, from inferring that the facial injuries were caused as part of the wider assault inflicted upon the deceased by the appellant. We therefore consider that the trial judge's decision to decline to give the direction sought by trial counsel cannot be faulted.
(b) Anal penetration
[136] The contention in this branch of this ground of appeal is that the trial judge erred in declining to direct the jury that there was insufficient evidence to allow them to find that the appellant had assaulted the deceased by penetrating the hinder parts of the deceased with his private member.
[137] In moving the trial judge to give such a direction counsel submitted that there was insufficient evidence to establish that the penetration of the anus and rectum of the deceased had been by means of a penis. However, as the trial judge states in his report, after she had described in her evidence the bruising to the anus, the rectal lining and the area at the base of the bladder, Dr McFarlane went on (pp 85-86) to say that these injuries were what one would associate with a sexual assault. There were no scratches or tears which one might associate with digital penetration. The penis would have the kind of smooth surface which could produce the internal injuries without producing scratches or other marks. Additionally, we are advised that in his evidence Dr Tavadia expressed the opinion that the penetration was unlikely to have been by an instrument and could well have been by the penis. As we understood him, counsel for the appellant in his submissions to us came to recognise that there was an evidential basis whereon the jury could infer that penile penetration had taken place. In our view, having regard to the medical evidence and the other factors to which the Solicitor General referred, there was an adequate evidential base upon which a jury could infer that penetration by the penis had occurred.
[138] It was also contended under this head that there was insufficient evidence that the anal intercourse amounted to an assault. In particular it was submitted that there was insufficient evidence to show that Mr Wallace had not been a willing party to this act and had not consented thereto.
[139] Whether it was established that the deceased did not consent to the sexual penetration was of course a matter of inference from the circumstances established in the evidence. The Solicitor General took as a starting point the evidence led from the deceased's father and his friend, Mr Caddis, to the effect that the deceased was heterosexual; and that he did not have friends in their thirties (the appellant being aged 36 at the material time). We agree with the submission for the Crown that, if they accepted that evidence, the jury were entitled to take the view that the deceased would be unlikely to have gone voluntarily to the house for the purpose of having anal sexual intercourse with the appellant.
[140] But, importantly, there was also the medical evidence. Taking first the injuries to Mr Wallace's anus and the surrounding area, we are advised that Dr Tavadia said that these injuries were consistent with forceful penetration. Dr Fernie's position was that the injuries were compatible with sexual assault with considerable force. Dr McFarlane, at p 88, gave evidence that the injuries in that area were consistent with force. Additionally, and also importantly, there was the evidence of the other injuries on the body of Mr Wallace. These included the injuries to his wrists and ankles, which the expert evidence interpreted as showing that he had been restrained and struggling; the fingertip bruising which was consistent with his having been restrained; and the positioning of the puncture mark which was unusual and was consistent with his hands being handcuffed. Additionally there was the evidence of the injuries to the face of the deceased, were the jury to hold that these had been inflicted by the appellant.
[141] In our view, all of that evidence provided a sufficient evidential basis upon which the jury would be entitled to conclude that the insertion of the appellant's penis into the anus of the deceased was an assault and was not consented to by him. We accordingly consider that the trial judge did not err in declining to give the direction requested by trial counsel and in leaving the matter for the jury's consideration.
(c) Murder
[142] Two distinct contentions were advanced on behalf of the appellant in this branch of this ground of appeal. The first was to the effect that there was insufficient evidence to link the death of the deceased to any actings on the part of the appellant and accordingly the trial judge ought to have directed the jury that they could not convict of homicide in any form, whether murder or culpable homicide. The second was that, assuming there were sufficient evidence of a causal link between the actings of the appellant and the death of the deceased, there was yet insufficient evidence to establish the crime of murder, particularly the mens rea of murder, and the jury ought to have been directed that they could not convict of murder, but only culpable homicide.
[143] The first of these contentions was founded largely on the fact that the pathologists were unable from their examination of the recovered parts of the body of the deceased to identify any specific mechanism of death. Counsel for the appellant stressed the passage in the cross-examination of Dr McFarlane, quoted above (para [111]). However, we observe that, having regard to the injuries suffered by the deceased, particularly those indicating a struggle whilst restrained by handcuffs and a sexual assault, and the amount of alcohol consumed by the deceased, Dr McFarlane was able to offer possible mechanisms of death, linked to the acts inflicted on the deceased, namely suffocation and postural asphyxia during restraint. It is also to be noted that the autopsy did not disclose any signs of disease or any sign suggestive of death through natural causes.
[144] In our view the existence of pathological expert evidence identifying a precise mechanism of death was not essential to the proof of homicide. The prosecution, and thus the jury, was entitled to look beyond the confines of the pathological examination and take account of the whole circumstances disclosed in the evidence. Among those circumstances was the evidence that the deceased was a healthy young man. He died at some point between approximately 0130 hrs on Sunday 5 December 1999 (when he was sighted at the entrance to Expo, the nightclub) and 1000 hrs on Monday 6 December 1999 (when the police exercise in Loch Lomond commenced). The results of the search of the appellant's flat in Kilmarnock - particularly the finding of quantities of the blood of the deceased - plainly allowed the inference that the death and subsequent dismemberment had taken place in that flat. From the injuries found on the deceased's body, the jury were entitled to conclude that he had been the subject of a violent sexual assault; that he had been restrained and had struggled violently; and also, depending on their assessment of the eyewitness evidence of the deceased's falling and the episode with Boax, that he had been struck in the face to the extent that the underlying bony structures suffered fracture. In our opinion it was in these circumstances open to the jury to infer that the deceased had not died from natural or accidental causes but had died as a result of the actings of the appellant, even though they might not be able to determine the precise mechanism of death.
[145] We would add that although the Solicitor General referred to the dismemberment, and in that respect Dickson on Evidence, paragraph 94, and Gardiner v HM Advocate 2007 SCCR 379 at paragraph [25], in connexion with the second of the contentions in this branch of the case, it appears to us that those authorities are also relevant to the first contention in that they indicate that post mortem actings by an accused in disposing of the body may be taken as adminicles of evidence establishing homicide. The matter is put thus by Dickson:
"Attempts to fabricate and suppress evidence and to subborn witnesses are much more forcible indications of guilt; for they show a consciousness that the undisguised truth is not consistent with the party's innocence. ...For the same reason, attempts to destroy human remains - as in the cases of Dr Webster and the Mannings - can seldom be explained on any hypothesis but that of murder."
[146] For these reasons we are unable to uphold the first contention. In our opinion the trial judge was justified in declining to direct the jury that they could not convict of homicide and in leaving to the jury to decide whether the necessary causal link had been established, a matter upon which he gave careful and explicit directions.
[147] As already narrated, the second contention was to the effect that there was insufficient evidence entitling the jury to infer that the appellant had mens rea for murder and that, assuming homicide to have been established, the trial judge should have acceded to the motion to direct the jury that they could not convict of murder but only culpable homicide. The submission advanced to the trial judge was, in essence, that the evidence relating to the appellant's having dismembered the body of the deceased was not relevant to his state of mind at the time of the death of the deceased. If that evidence were thus excluded from the jury's consideration, the remaining material in the form of the medical evidence of the injuries, none of which in itself involved the infliction of lethal violence, did not enable the drawing of an inference of wicked recklessness.
[148] It is apparent from the speech to the jury by the trial Advocate depute that he placed significant reliance on the dismemberment evidence as demonstrating the wicked recklessness as to consequences which (absent evidence of actual intent to kill) is necessary for establishing murder. It accordingly appears to us that the issue in this aspect of the appeal is whether the trial judge was right to allow that evidence to be considered by the jury in deciding whether the charge of murder had been made out.
[149] While the relevance of post mortem actings by an assailant to an assessment of mens rea at the time of the assault obviously presents some difficulty, we have come to the conclusion that there is no reason in principle for excluding from consideration whether murder has been established all evidence of actings of an attacker after the death of the victim from which an inference as to his state of mind may reasonably be drawn. The authorities to which we were referred on this issue, namely Gardiner v HM Advocate; McArthur v HM Advocate; and Dickson on Evidence, paragraph 94, confirm, we think, the legitimacy of treating such post mortem actings as circumstances from which it may possibly be open to a trier of fact to draw inferences as to the state of mind of the attacker at the relevant time. An example, canvassed in the discussion before the trial judge, is the attacker who on learning of the death of the person attacked expresses glee or satisfaction at that result. An admission that he did not care how much damage he had inflicted would be potentially relevant. Similarly, if, after appreciating that he has brought about the victim's death, the assailant continues to attack or mutilate the dead body it is difficult to see why it should not be appropriate to have regard to those post mortem actings in drawing inferences as to his state of mind. As we understood him, counsel for the appellant accepted that in appropriate circumstances post mortem actings might be legitimately considered for that purpose.
[150] In the present case the evidence of post-mortem actings went further than a simple attempt to conceal or dispose of the body but involved the dismemberment, within the flat, of the body of the deceased. The trial Advocate depute and the Solicitor General applied to the nature of that dismemberment, as described in the medical evidence, the adjective "gruesome". Without it being necessary for us to enter into the detail of that evidence in this Opinion, we consider that that epithet could legitimately be applied. Further, while the precise elapse of time between the moment of the death of Mr Wallace and the commencement of the mutilation of his body by the dismemberment could not be fixed from the evidence, it is apparent that there was no extensive interval of time, the first discoveries in Loch Lomond having been made on the Monday morning. That proximity of time is a matter to which, in our view, the jury would be entitled to have regard in deciding what inferences, if any, they were prepared to draw.
[151] Before the trial judge much of the thrust of the submission of counsel for the appellant was to the effect that actings involving the disposal of the body of a deceased were consistent with a reaction of panic. A similar vein was followed before us by Mr Shead. That is no doubt a possible interpretation which a jury might place on such actings (the adoption of which interpretation being no doubt easier for a jury were the accused to have given evidence of panic following unexpected death - which, of course, did not occur in the present case). But an alternative, incriminating interpretation was also open to the jury. As the authorities summarised in the passage from the Opinion of the Court in Al Megrahi set out above make clear, it is for the jury to decide upon which of a plurality of possible inferences they consider should be drawn from circumstantial evidence.
[152] While recognising the potential difficulties involved in the application of post mortem actings to mens rea at the time of the assault, we have ultimately come to the view that in the present case, while open to the different interpretations contended for by counsel on each side at the trial, the evidence of dismemberment was relevant to the mens rea of the appellant and that it cannot be affirmed the trial judge erred in declining the direction invited by trial counsel.
[153] For these reasons we consider that this branch of the argument for the appellant is also unsound; and accordingly, taken overall, and for the reasons which we have given, we are unable to sustain Ground of Appeal 8.
(VI) - ADMISSIBILITY OF EVIDENCE CONCERNING THE APPELLANT'S TRAVEL TO THE NETHERLANDS
[154] This ground of appeal - ground 5 - is in these terms:-
"The learned trial judge erred in admitting the chapter [of] evidence beginning with Crown witness 40, Roger Clements. This evidence was to the effect that the Appellant had travelled from Scotland to the Netherlands, via Jersey and France, around 19 December 1999. The Crown sought to argue that the Jury would be entitled to draw adverse inferences from the Appellant's conduct.
The effect of leading this evidence before the Jury was that evidence was led of a crime with which the Appellant was not charged and for which his extradition was not sought, namely an attempt to pervert the course of justice by fleeing and absconding, &c. This evidence was different in time, place and character from the offence with which the appellant was charged, namely the crime of murder. In particular the conduct in question was some twelve days after the date on which the appellant was said to have assaulted and murdered the deceased, Barry Wallace. In this regard, reference is made to the case of Nelson v HMA 1994 SCCR 192. In any event, no arrest warrant had been issued in relation to the Appellant as of 19th December 1999.
This evidence was not habile to the charge of murder in this case, but tended to show that the Appellant was of bad character and was accordingly prejudicial rather than probative in nature.
Further the admission of this evidence was made without regard to the difficulties faced by the defence in countering the inferences sought to be drawn by the Crown. In particular an alternative explanation countering such inferences of his actions could only be made by drawing attention to the prevailing highly prejudicial publicity concerning the appellant at that time".
Submissions
[155] Counsel for the appellant submitted that the evidence in question - respecting the appellant's having travelled to the Netherlands - was evidence of the commission of a crime which was not charged, namely an attempt to pervert the course of justice by fleeing the jurisdiction. Nor was this chapter of evidence covered by any express averment in the libel in the indictment. So fair notice was not given and the evidence ought therefore not to have been admitted.
[156] Counsel referred in this respect to Nelson v HM Advocate 1994 SCCR 192, 203 in which the court sought to state the rule as being that:
"The Crown can lead any evidence relevant to the proof of a crime charged, even though it may show or tend to show the commission of another crime not charged, unless fair notice requires that that other crime should be charged or otherwise referred to expressly in the complaint or indictment. This will be so if the evidence sought to be led tends to show that the accused was of bad character and that other crime is so different in time, place or character from the crime charged, that the libel does not give fair notice to the accused that evidence relating to that other crime may be led, or if it is the intention as proof of the crime charged to establish that the accused was in fact guilty of that other crime."
Counsel for the appellant also referred to Slack v HM Advocate 1995 SCCR 809.
[157] Counsel for the appellant went on to submit that in order to come within the Nelson test, the evidence of actings constituting another offence had to be necessary for the proof of the crime charged. In the present case, while the trial Advocate depute may have thought it useful or desirable to lead the chapter of evidence in question, it was not a necessary exercise to prove the charge. So Nelson could not avail the Crown. It would have been a straightforward matter to give notice of this by including a specific charge, or an averment similar in kind to the averment of dismemberment. But, in the event, fair notice had not been given.
[158] In response the Solicitor General turned first to Slack v HM Advocate and submitted that nothing could be taken from that case which was of relevance to the present case. Plainly, proof that the accused in Slack had "unlawfully removed" the car in question was completely irrelevant to the charge faced by the accused, which was that of driving without insurance.
[159] However, he submitted, the evidence of the appellant's travel to Amsterdam was relevant evidence as respects proof of the charge in the indictment. While it was a circumstance which was in itself neutral, it was possible on looking at it in combination with other factors for it to be part of wider, incriminating picture. This was the approach taken by the Advocate depute in his speech to the jury (pp 44 to 45). That approach required the evidence led about what was said on the radio about the search of the appellant's flat; and also the evidence of what was found in the house. It was intended as a circumstance showing that the appellant was present at the relevant time, namely the time of death of Mr Wallace. It was not put forward as an attempt to pervert the course of justice by the flight to Amsterdam.
[160] The Solicitor General prefaced his submission on Nelson by recalling the background to the case. Prior to that decision prosecutors had been faced with objections to lines of evidence on the basis of a challenge that the evidence demonstrated a crime not charged and in order to meet these challenges, indictments were becoming overloaded with minor charges to meet these objections. In these circumstances, the Crown sought to get guidance from the appeal court on the extent to which it was necessary to include ancillary, essentially evidential charges.
[161] As regards the application of the test to the circumstances of this case, the Solicitor General observed first that the flight to Amsterdam did not show bad character. Of itself this was a neutral piece of evidence which did not gain potency until other evidence was led. Even if it did of itself bear upon the character of the appellant it did so only incidentally and in that it was yet relevant the Crown were still entitled to lead it. Further the circumstances of the journey to the Netherlands were not different in time, place and character from the circumstances attending the charge of murder, given the relative proximity in time and its relationship with the searching of the appellant's flat. It was all bound up as part of the wider, circumstantial case advanced by the Crown.
[162] Lastly, the Solicitor General referred to Anderson v Allen 1985 SCCR 399, as supporting a submission that if the court were to consider that notice of Mr Clement's evidence was necessary then it could be obtained from the precognition of the witnesses listed on the indictment. It could not, in any event, be said that any miscarriage of justice had occurred.
Discussion
[163] We begin by observing that, as members of the Court raised in the discussion of this ground of appeal, we have some reservations whether the mere act of departing from the scene of a crime or travelling to another country in itself properly constitutes the crime of attempting to pervert the course of justice. But no doubt for their various, differing, interests neither party was anxious to enter into that question. We therefore proceed upon the basis, apparently accepted by both sides, that Mr Clement's evidence of the travel to the European mainland demonstrated, or was capable of being construed as demonstrating, an offence.
[164] On that assumption, we turn to the submissions of counsel on both sides. First we have to say that we agree that as part of the circumstantial case advanced by the Crown the evidence given by Mr Clements formed a part of the general picture. So, while in itself perhaps neutral, it has a potential significance. It cannot be said to be irrelevant to the proof of the charge of murder. We did not understand counsel for the appellant to dispute that.
[165] Rather, his submission was that it was not necessary for the proof of the principal charge, given the other evidential sources available to the prosecution.
[166] We reject that focus on necessity. The test must be relevance. Counsel for the appellant also accepted that the chapter of evidence in question did not show bad character. We accept the submission for the Crown that (were it to be an offence) the travel to the Netherlands was not so different in time, place or character to result in the libel not giving fair notice. It was part of the general circumstantial case invoked by the Crown. In the result we consider that this ground of appeal cannot be sustained.
[167] Had we required to go on to consider the Solicitor General's submissions in terms of Anderson v Hill, we would be inclined to the view these might be supportable in the particular circumstances of this case in that Mr Clement's evidence was entirely confined to the travel arrangements. In that respect, we observe that in the test as laid down by the Lord Justice General in Nelson v HM Advocate, the Lord Justice General is not prescriptive as to the methods by which notice could be given so long as the notice is referred to expressly in the indictment. But we reserve any definitive view as to the extent to which notice may be given by the mere inclusion of a witness in the list of witnesses annexed to the indictment.
(VII) - SPECIALTY
Introductory
[168] The ground of appeal pertinent to this chapter is ground of appeal 1 which is in these terms:
"There was a breach of the Rule of Specialty. The appellant was convicted and sentenced in breach of the terms of his extradition and Article 14 of the ECE having regard to:
the terms of the indictment;
the leading of evidence which was put before the jury as criminal conduct;
the basis upon which conviction was sought by the Crown;
the basis upon which the jury were charged;
the terms of sentence.
All of the foregoing demonstrate that the Appellant has been proceeded against in breach of the Rule of Specialty such as gives rise to a miscarriage of justice".
[169] At the time of the appellant's extradition and trial the primary legislative provision setting out the rule of specialty - a feature of the law of extradition treaties - was section 18 of the Extradition Act 1989 which provides:
"s18.- Restrictions upon proceedings for other offences in case of persons returned by foreign states.
(1) Where any person is returned to the United Kingdom by a foreign state in pursuance of extradition arrangements, he shall not, unless he has first been restored or had an opportunity of leaving the United Kingdom, be triable or tried for any offence committed prior to the surrender in any part of the United Kingdom, other than-
(a) an offence in respect of which he was returned; or
(b) any offence disclosed by the particulars furnished to the foreign state on which his return is grounded; or
(c) any other offence in respect of which the foreign state may consent to his being tried.
(2) Where any person returned to the United Kingdom in pursuance of extradition arrangements has been convicted before his return of an offence for which his return was not granted, any punishment for that offence shall by operation of this section be remitted; but his conviction for it shall be treated as a conviction for all other purposes."
Additionally, the United Kingdom was at that time a signatory to the 1957 European Convention on Extradition to which internal effect in the United Kingdom was given by the European Convention on Extradition Order 1990 S.I. 1990/1507. Article 14 of the Convention provides:
"Article 14 - Rule of specialty
1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases:
(a) when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention;
(b) when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
2. The requesting Party may, however, take any measures necessary to remove the person from its territory, or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time.
3. When the description of the offence charged is altered in the course of proceedings, the extradited person shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition."
In the submissions advanced to us nothing turned on any textual variations between the Extradition Act 1989, Section 18 and Article 14 of the Convention. We would add that the equivalent current provisions are contained in the Extradition Act 2003.
The extradition proceedings
[170] The initial application to the Netherlands authorities proceeded upon, among other documents, the petition warrant granted by the sheriff on 21 December 1999. It was in these terms:
"(1) On 5 or 6 December 1999 in Kilmarnock the precise locus being to the petitioner presently unknown [the appellant] did abduct Barry George Wallace ... apply handcuffs or similar implements to his wrists, bind his legs with a ligature and forcibly confine him against his will.
(2) On 5 or 6 December 1999 in Kilmarnock or elsewhere in Scotland the precise locus being to the petitioner presently unknown did assault said Barry George Wallace, dismember his limbs and cut his head from his body with a saw or similar instrument and by those means or by some other means to the petitioner presently unknown did murder him."
The request for extradition also extended to a second petition warrant granted by the sheriff on 10 January 2000 which alleged a separate charge of commission of attempt to pervert the course of justice. More particularly, the terms of the second petition, having narrated the abduction and murder of Barry George Wallace in terms similar to those in the first petition, continued with the charge that the appellant:
"... being conscious of his guilt in respect thereof, did on 5 or 6 December 1999, remove the dismembered body of said Barry George Wallace from 2B Doon Place, Bellfield, Kilmarnock, and did attempt to conceal parts of said body in the waters of Loch Lomond, Stirlingshire, and, in particular, did attempt to conceal there the torso, two severed arms, a severed leg and two sections of leg and further, between 5 and 15 December 1999, both dates inclusive, at Barassie, Ayrshire, did attempt to dissociate the severed head of said Barry George Wallace from the other dismembered parts of his body, and did attempt to conceal it in the sea there, and all of this he did with intent to conceal the crimes of abduction and murder narrated above, to prevent the authorities from recovering evidence in connection with said crimes, and to avoid detention, arrest and prosecution in respect of said crimes, all with intent to pervert the course of justice and did attempt to pervert the course of justice."
[171] In a judgment dated 11 April 2000 the Arrondissementsrechtbank [District Court] in Amsterdam approved the extradition of the appellant in respect of the matters contained in the first petition of 21 December 1999 but declined to authorise extradition in respect of the second petition on the ground that the facts set out in it and averred to constitute the crime attempting to pervert the course of justice would not be a crime under Dutch law and accordingly did not meet the test of double criminality. The decision of the Arrondissementsrechtbank was upheld by the Hoge Raad [Supreme Court] on 26 September 2000 and the Dutch Minister of Justice authorised extradition on 14 November 2000 in terms of those judicial decisions.
[172] No doubt in response to the decision of the Dutch authorities and the prevailing legislative provisions, the Crown, in framing the indictment against the appellant, did not include any charge of attempting to pervert the course of justice. It did however include in the single charge of murder an averment of dismemberment of the body of Barry Wallace.
[173] The inclusion of that averment in the indictment gave rise to the second pre-trial minute argued before Lord Wheatley. We refer to his discussion of it at paragraphs [15] to [17] of his Opinion leading to his refusal of the application contained in that minute. Lord Wheatley's decision was endorsed by the Appeal Court in the terms which we have set out above - see paragraph [14].
[174] The finality of that decision is not, in our view, open to being re-visited in this appeal. Although at some points counsel for the appellant suggested that the Crown could not lead evidence of dismemberment and by doing so had breached the specialty rule, his principal focus was to deploy the specialty rule to a matter which could have been, but was not, argued before Lord Wheatley.
[175] That matter was the inclusion in the indictment of the averment that the appellant "did assault [the deceased] ...and penetrate his hinder parts with your private member". In short, the submission advanced by counsel for the appellant was to the effect that this libelled a separate crime of sodomy, not charged as such in the extradition request, and so the Court had no jurisdiction to entertain this allegation of criminal conduct, and lacking jurisdiction, the omission to question matters in the minute before Lord Wheatley or to object to the leading of the evidence was not a bar to the submission.
The scope of the specialty rule
[176] In approaching the arguments on this branch of the appeal we find it convenient first to discuss and identify the scope and effect of the specialty rule. On this matter we were referred to a number of reported decisions - R v Aubrey Fletcher ex parte Ross Munro [1968] 1 Q.B. 620; R v Davies (1983) 76 Cr. App. R. 120; Welsh v Secretary of State for the Home Department [2007] 1 W.L.R. 1281 and R v Seddon [2009] 2 Cr. App. R. 9 143.
[177] It is also convenient to preface that exercise by setting out in summary the essentials of the positions adopted by the parties on this matter. The position of the Crown was that the specialty rule struck at the extradited person's being charged with and punished for a crime or offence other than that or those in respect of which the extradition had been ordered by the extraditing State. The rule did not affect or impinge upon the evidence which might be led to establish the extradition crime even if, in proving that charge, the evidence might disclose some other offence. Nor did it impinge upon the domestic basis for convicting and sentencing on the extradition crime or offence.
[178] The contention for the appellant on the other hand was that the specialty rule precluded the leading of any evidence of actings which, while yet relevant and habile to prove the extradition crime, constituted in themselves a separate crime or offence for which express authority had not been granted by the extraditing state. Put in more concrete terms, as respects the first matter raised by counsel for the appellant, it was particularly contended that while the averments of anal penetration libelled as part of the assault upon the deceased leading to his death were not separately libelled as a separate charge of sodomy, the terms of the charge in the indictment yet disclosed facts amounting to the commission of the common law offence of sodomy and hence, it was submitted, evidence of that anal assault was inadmissible.
[179] In R v Aubrey Fletcher the applicant, Mr Ross Munro, had been extradited from France on six charges involving forgery, uttering and fraud in respect of two transfers of money from England abroad. The factual material upon which extradition on those charges was granted by the French authorities related principally to documents relating to those transfers and alleged to have been prepared by the applicant while head of the accounts department of the English company alleged to have been defrauded. At committal proceedings before the metropolitan magistrate (Mr Aubrey Fletcher) the Crown sought to supplement the evidence upon which the extradition had been granted by evidence of the applicant's having intromitted with the transferred funds in Switzerland. The issue before the court was whether, as the applicant contended, evidence of those further actings in Switzerland was made inadmissible by virtue of the specialty rule, the statutory enactment of which was then contained in the Extradition Act 1870, Section 19[1].
[180] In his judgment Lord Parker C.J. said (at p 627 B-G) of the point taken by the applicant:
"This is a novel point and, if it be right, it has an alarming consequence. It would mean that not only is this a restriction on the procedure on committal, a restriction on the receiving of evidence, but indeed logically it would affect the trial, because no evidence would be admissible at the trial unless it was in regard to facts raised in the surrender documents. Another alarming consequence would be that if, when the person concerned arrives in this country after being surrendered by the foreign state, he is arrested, cautioned and questioned by a police officer, evidence of what he said, whether for him or against him, would be quite inadmissible.
In my judgment Parliament cannot have intended any such thing in this section. Two things are quite clear, as it seems to me. One is that that section is designed to prevent a man from being tried after his surrender for a crime other than that for which he has been extradited. That is putting the matter quite generally, because, as Rex v Corrigan[2] shows, it may be that a committal can take place for, let me say, fraudulent conversion when the crime alleged in the warrant was false pretences or vice versa. But, broadly speaking, the object is to ascertain the type of crime for which he can be tried in this country after surrender. The words which have to be construed are words intended to define and describe that crime for which he can be convicted and tried.
Secondly, as it seems to me, the section is not in any way intended to interfere with the ordinary procedures and laws of evidence in this country whether in committal proceedings or at the trial ..."
Salmon L.J. and Widgery L.J. agreed with the judgment of the Lord Chief Justice. In his judgment Salmon L.J. said inter alia:
"In my judgment Section 19 of the Extradition Act, 1870, is in no way concerned with procedure but solely with jurisdiction. It does not seek to limit or prescribe the evidence which may be called at the criminal trial. It is concerned solely with the type of crime for which our courts have the power to try a man who has been extradited to this country. The clear object of the section is to prevent, for example, a man who has been surrendered on a warrant charging him with forgery, being tried in this country for a murder that he is alleged to have committed before the surrender." (p 629 B-D)
[181] In Welsh and Another v Secretary of State for the Home Department the appellants sought to resist their extradition from the United Kingdom to the United States of America to stand trial on a large number of charges arising out of investment scheme frauds. In terms of the Extradition Act 2003, extradition could not be ordered in the absence of specialty arrangements as described in Section 95(3) and (4) of that Act and the argument for the appellants, put shortly, was that if they were sent to the USA the prosecuting and judicial authorities in the USA would deal with them in various ways, which, it was argued, would offend against the specialty rule. One of those ways, said to breach the rule, was the use as evidence to prove the extradition offence of evidence which might also constitute proof of an offence in respect of which extradition had not been granted. The matter is discussed by Ouseley J. (with whom Laws L.J. agreed) at paragraphs 89 and 90 as follows:
"88. The second contention raised by Mr Summers [counsel for the appellants] was that the US Courts would permit the extradition offence to be proved by evidence relating to offences upon which extradition had been expressly refused. That proposition is generally borne out by the authorities to which Mr Summers referred us. But the US Courts do not regard that as a breach of the specialty rule because the rule is not seen as regulating the manner in which the extradition offence is proved.
89. I have seen no UK authority which suggests that the specialty rule is breached in these circumstances. The specialty rule does not limit, in my view, the evidence which can be admitted to prove the extradition offence and the rules which govern the admissibility of evidence are those of the trial state. I see nothing in this point."
[182] The appellant in R v Seddon pled guilty to blackmail and, having been allowed bail pending sentence, absconded to Spain. He was returned to England under a European Arrest Warrant which specified as the extradition offence the charge of blackmail to which he had pled guilty (and also two other outstanding offences namely a contravention of Section 1 of the Road Traffic Act 1988 and the conspiracy to pervert the course of justice). The issue in the appeal was whether Seddon's conviction (following his being surrendered in terms of the European Arrest Warrant) under the Bail Act 1976 for contempt of court by failing to surrender to custody breached the specialty principle enacted in section 146 of the Extradition Act 2003. The principal argument for the Crown, based on the terms of subsection 3(b) of Section 146 was that a mere mention within the lengthy description, in the warrant, of the terms of the blackmail offence of the appellant's having failed to answer bail was sufficient to make the Bail Act contravention an offence in respect of which extradition had been granted. That argument was rejected by the court. At paragraph 22, in what is an obiter remark, the court expressed itself satisfied that the terms of section 146(3)(b) enabled the court to proceed against a surrendered person for a lesser offence included in the extradition offence but found it unnecessary to decide the extent to which it might enable prosecution on charges of offences described as ancillary to the extradition offence.
[183] The fourth of the cases to which we were referred - R v Davies - was brought before the court by the Home Office, which was concerned that the specialty rule might have been breached in circumstances in which a person had been returned to England from the United States of America and had waived the specialty rule and pled guilty to a statutory offence not covered by the relevant extradition treaty. The decision is to the effect that the specialty rule is jurisdictional in nature and cannot be obviated by the mutual agreement of the prosecutor and the accused. It thus does not assist on the scope or effect of the specialty principle.
[184] From our consideration of these authorities we have come to the conclusion that the specialty principle prevents a State to which a person has been surrendered from prosecuting that person for an offence different in its essential nature from the charge, or any of the charges, upon which he or she was extradited. The rule does not however have any effect, or operate any restriction, upon the evidence which may be deployed by the prosecutor in proof of the commission of the criminal conduct in respect of which the person was surrendered; and that is so even if the evidence so deployed discloses or suggests the commission of a criminal offence for which extradition was not granted by the sending State.
[185] We would add that these conclusions are, in our view, entirely consistent with the origins and rationale of the specialty rule. The rule is primarily one of international law. It is concerned with respecting the power of the extraditing State to refuse extradition and ensuring that in so far as that State has a discretion to refuse extradition, that discretion is not abused by the receiving State. Its principal purpose is thus to preserve comity between States, rather than effect a protection for the accused. Given that such is the primary purpose, it is in our view comprehensible that the rule should not be concerned with the nature of the evidence and procedure followed in prosecuting the extradition offence or whether the evidence tendered in the proof of that offence might also indicate the commission of some other offence or involve the commission of some lesser offence within the category of the extradition offence. In this connection we refer to the description of the speciality principle or rule in paragraph 5 of the judgment of the Court in R v Seddon and paragraphs 37 and 38 of the judgement of Ouseley J. in Welsh v Home Secretary.
Application of the specialty rule
(i) Dismemberment
[186] As already mentioned, the competency of the inclusion in the indictment of an averment of the dismemberment of the body of the deceased was argued before and decided by Lord Wheatley, whose decision was upheld by the Appeal Court. Although counsel for the appellant sought to argue that by leading evidence of the dismemberment of the body of the deceased the Crown had led evidence of an attempt to pervert the course of justice and had thereby offended against the specialty principle, we consider that the argument advanced to us is essentially no different from that advanced to Lord Wheatley. We therefore consider that the matter was finally decided by the Appeal Court's affirmation of the decision of Lord Wheatley and that it is not open to review by us.
[187] However, given the view which we have already taken to the effect that the evidence of dismemberment, although post mortem, was relevant to the Crown's proof of murder, in respect at least of mens rea (see paragraphs [148] et seq supra) it follows in our view from the conclusions which we have just expressed respecting the scope and effect of the specialty rule that there was no breach of that rule as respects the leading of the dismemberment evidence.
(ii) The averments of anal penetration
[188] We recognise that, as pointed out by counsel in his submissions, these averments in the indictment were treated by the trial court as amounting to an allegation of sodomy in respect that the trial judge gave the jury directions concerning the crime of sodomy and the statutory provisions thereanent contained in Section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995. For our part we have some reservations whether the averments of anal penetration, which were part of an allegation of a sexual assault, were properly to be seen as averments of sodomy as opposed to incidents in that indecent or sexual assault. It is to be noted that the averments in the indictment do not include the standard averment in a charge of sodomy that the accused "did have unnatural carnal connection". The common law crime of sodomy does not involve the establishment of the absence of consent on the part of the passive agent or catamite. It reflects a former general disapproval of homosexuality and both parties are guilty of the offence (cf. Gordon, Criminal Law 3rd ed., paragraph 34-01.) But it is perhaps unnecessary to discuss further this area, in which we acknowledge that there is little authority, since we do not see in the trial judge's approach to matters in his charge to the jury anything detrimental to the appellant's position. The trial judge's directions on this matter may well have been given out of a sense of caution and in light of passages in the address to the jury by defence counsel advancing the contention that there was an absence of clear evidence of forcible anal intercourse in the Crown case, and to ensure that the jury did not proceed upon the possibility that consensual anal penetration remained criminal. Be that as it may, however, the fact is that the indictment did not include any charge of sodomy separate from the charge of assault and murder and thus no penalty separate from that imposed in respect of the murder could have been imposed upon on the appellant in respect of the averment said to be an averment of sodomy.
[189] Consistent with the indictment, the whole presentation of the Crown case was that the deceased died in consequence of an assault - which was of a sexual nature - and which as part thereof involved forcible anal penetration, resulting in the injuries to that part of the body of the deceased described in the evidence. We were referred by both sides, at varying points in the presentation of the appeal, to the speech of the trial Advocate depute from which it is clear that the Crown was simply invoking the evidence of assault by forcible anal penetration as part of a sexual assault leading to murder; it is nowhere suggested by the trial Advocate depute that there be a conviction separatim for sodomy; or indeed that there was any allegation or suggestion by the Crown of a common law crime of sodomy.
[190] In the judicial decisions to which we were referred respecting the specialty rule or principle there is recognition that in extradition cases, obviously, one cannot operate a narrow technical approach as to the juristic ingredients in a particular offence; a more "conduct based" approach needs to be followed (cf R v Seddon, paragraph 20 of the judgment of the court). We consider that in principle that view is sound. As was pointed out by the Solicitor General, the first petition warrant upon which extradition was granted referred to the possibility of establishing the death by "some other means to the petitioner presently unknown". At that point in time, the torso of the deceased had not been recovered and hence the procurator fiscal was ignorant of such details of the assault upon the deceased as might later be revealed by that examination. In the event, those details revealed evidence of forcible anal penetration. So, as part of the allegation of assault leading to death, those details were an inherent element of that assault. In other words they were part and parcel of the conduct founding the proof of the extradition charge. On the broader, conduct based approach required in the application of extradition law, we thus do not consider that the possibility that domestic law might technically, or, in the old-fashioned sense of the adverb, nicely, identify a part of the averments of the details of the assault upon the deceased as containing an averment of sodomy leads to any violation of the specialty principle.
[191] Accordingly we do not consider that it can properly be said that the appellant was proceeded against and convicted, separately from the charge of murder, of a distinct charge of sodomy any more than it may be said that he was separately proceeded against and convicted of the discrete charge of assault. The appellant faced a single charge of murder, within which were contained as part of that charge the lesser allegations of assault, including the averment of anal penetration. Whether that be categorised as indecent assault or sodomy it remains a matter within the murder charge. These were lesser offences included within the charge of murder and for the reasons which we have endeavoured to indicate their inclusion did not offend against the international law principle of specialty. Further, in passing sentence, the trial judge stated that the appellant had been convicted of murder and he passed sentence for that offence. No separate penalty was imposed in respect of assault or indeed sodomy. The extract conviction, providing the warrant for the appellant's imprisonment, records the conviction as being that of murder alone.
[192] It is nonetheless the case that, having passed sentence for murder, the trial judge went on to say in open court that the appellant had been convicted of an offence to which the Sex Offenders Act 1997 applied. He did not explain the basis for that pronouncement. It is also true that subsequently the Clerk of Justiciary prepared a certificate, upon which counsel for the appellant understandably founded in his submissions to us, that the appellant had been convicted of "murder and sodomy", which perhaps best reflected the clerk's assumptions respecting the trial judge's oral pronouncement.
[193] The Solicitor General submitted that, properly understood, the certificate prepared by the Clerk of Justiciary respecting the Sex Offenders Act 1997 was not part of the trial process; so it was in no way conclusive or determinative of the offence of which the appellant had been convicted. We agree that the certificate prepared by the clerk is not part of the trial process. We would further observe that the pronouncement by the trial judge that the appellant had been convicted of a sexual offence - unspecified - under the Sex Offenders Act 1997 cannot alter the true terms of the conviction as given by the verdict of the jury. Contrary to a prevalent popular belief, there was at the time of the trial (and also now) no such statutory creation as a "Sex Offenders' Register"; nor is it a matter for the court whether a convicted person is "placed on the Sex Offenders' Register"[3]. Rather, the requirement to notify various matters to the police arises simply by virtue of the conviction of an offence catalogued in the relevant legislation - in the case of the appellant, Schedule 1 to the 1997 Act. The certificate issued by the clerk, following the conclusion of the trial, was simply directed to the sufficiency of evidence of that conviction - see Section 5 of the 1997 Act. But absent any true or proper conviction for a sexual offence duly catalogued in the legislation as importing a notification requirement, the compilation of the certificate does not in itself give rise to any liability to the notification requirements. Nor, in our view would any statement by a presiding judge in the court.
[194] Accordingly we do not consider that the trial judge's pronouncement, or the clerk's certificate bearing to be in terms of the 1997 Act, can properly alter the terms of the appellant's conviction, which was that of murder in terms of the indictment. As we have already remarked, the appellant was not convicted of the discrete crime of sodomy, or of assault, and subjected to any discrete or separate penalty in that respect.
[195] We therefore conclude that neither the leading of evidence of forcible anal penetration, nor the appellant's conviction in terms of the full libel of the charge of murder which he faced, breached the principle of specialty as understood in international law or the terms of Article 14 of the European Convention on Extradition or s.18 of the Extradition Act 1989.
(VIII) - JURY TRIAL - REASONS FOR DECISION
[196] The ground of appeal relevant to this Chapter is ground of appeal 7 which reads:-
"By a majority, the Jury returned a guilty verdict against the background of a case which was factually complex and in which they had received detailed legal directions from the Trial Judge. In accordance with Scottish procedure, the Jury did so without giving any reasons such as would be sufficient to explain the rational basis or gist of their decision. It is submitted that in all these circumstances the Appellant has suffered a breach of Article 6(1) of his 'Convention Rights' pursuant to the Human Rights Act 1998 and the Scotland Act (1998), the Court having provided no reasons for its decision. This breach gives rise to a miscarriage of justice".
Submissions
[197] In advancing this ground of appeal counsel for the appellant began by stating that the complaint advanced under this head of the argument was not an attack on the whole system of jury trial; rather in the particular circumstances and complexities of the present case the fact that the jury did not give reasons for its verdict was not sufficient to meet the fair trial guarantee. While that was counsel's initial position, matters were subsequently presented on a much broader front.
[198] The principle that a court should give a reasoned decision was, said counsel, set out by the European Court of Human Rights - "ECtHR" - in Suominen v Finland (Application No.37801/97) of 1 July 2003 where the ECtHR also recognised that the extent to which the duty to give reasons applied may vary according to the nature of the decision and the circumstances of the case. A similar recognition was expressed by the European Commission of Human Rights in its admissibility decision of 15 May 1996 in Planka v Austria (Application No.25852/94). The complaint that the jury verdict in the Austrian assize court (Geschworenengericht) was delivered without reasons being given by the jury was held inadmissible by the Commission on the view that the questions put to the jury by the presiding judge formed a framework for the jury's verdict. In Papon v France (No. 2) the ECtHR reiterated that the duty to give reasons may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. The court went on to say that the requirement that reasons must be given "must also accommodate any unusual procedural features, particularly in assize courts, where the jurors are not required to give reasons for their personal convictions."; and thereafter, having noted that French criminal procedure provided for the president of the court putting specific questions to the jury, the ECtHR found that the 768 questions put to the jury by the president of the assize court formed the framework on which the jury's decision was based and that the precision of the questions offset the fact that no reasons were given for the jury's answers.
[199] However, although in Papon the ECtHR had referred to earlier Commission decisions respecting the somewhat similar Belgian system, namely the decision of 30 March 1992 in R v Belgium (Application No.15957/90) and the decision of 29 June 1994 in Zarouali v Belgium (Application No.20664/92), counsel for the appellant pointed out that in its decision in Taxquet v Belgium of 13 January 2009 (Application No.926/05) the ECtHR (Second Section) had upheld a complaint by the applicant that his right to a fair trial had not been respected in view of the fact that his conviction by the assize court in Belgium had not included a statement of reasons. The decision in Taxquet had been referred to and was awaiting hearing before the Grand Chamber. But, said counsel, the decision contained clear indications that the ECtHR considered that matters had moved on, reference being made in particular to paragraphs 42 to 44 of the judgment in which the Court referred to there having been since Zarouali "a perceptible change in both the Court's case law and the contracting States' legislation." Reference was also made to inter alia paragraph 48 as indicating a need for the jury's answers to be accompanied by reasons.
[200] While acknowledging that in the present case the jury had the benefit of the speeches on each side and the trial judge's directions, counsel submitted that in light of the decision in Taxquet the procedure followed in the present case and in other jury trials in Scotland could not meet the test set out by the ECtHR. The right to have a reasoned decision was violated because a jury's reasons for reaching their verdict were not sufficiently transparent. In a circumstantial case, such as the present, the jury required to draw inferences from primary findings of fact. The process of reasoning which the jury might have followed in drawing inferences thus lacked transparency. There was a lack of other sufficient safeguards in proceedings by jury trial in Scotland. Matters were exacerbated by the allowance of a simple majority verdict and the secrecy of the jury's deliberations. Accordingly Article 6 had been infringed by the fact that the jury did not provide reasons.
[201] For his part, the Solicitor General submitted that the fact that a jury did not give reasons for its verdict was not contrary to Article 6. He referred first to the admissibility decision of the ECtHR of 2 February 1999 in Saric v Denmark (Application No.31913/96). The Court observed, respecting the Danish decision in issue:
"The absence of reasons in the High Court judgment was due to the fact that the applicant's guilt was determined by a jury, something which cannot in itself be considered contrary to the Convention (see Application No 15957/90, decision of 30 March 1992, DR72, E195)."
The Solicitor General then referred to the admissibility decision of the ECtHR of 8 October 2002 in Snooks and Dowse v United Kingdom (Applications Nos.44305/98 and 49150/99) which concerned the system of jury trial by "jurat" in "inferior number" proceedings on the island of Jersey and which, the Solicitor General suggested, was by comparison with the other European cases involving trial by an assize or jury perhaps the system which was closest to the Scottish jury system. In each case the body of jurats received directions from the judge in his summing up but gave no reasons for their decision. In holding the complaint about the failure of the Royal Court to give reasons for its decisions as being manifestly unfounded, the ECtHR referred to Saric v Denmark and went on to say there is nothing in either case to suggest that the jurats' verdicts were arbitrary, and in each case the safety of the convictions was examined on appeal. The complaint that in delivering its verdict a jury did not give any statement of reason had been addressed in Transco Plc v HM Advocate 2005 JC 44 - in particular by Lord Osborne at paragraph 30 and Lord Hamilton at paragraphs 49 and 50. The complaint now advanced by counsel for the appellant was essentially the same as that which had been advanced in Transco and rejected.
[202] The Solicitor General submitted that, as indicated in Transco, an understanding of the reasons underlying a jury's verdict was to be obtained from the speeches to the jury by prosecutor and defence and the charge by the presiding trial judge, all of which were recorded. Decisions given by a trial judge during the course of the proceedings fell to be accompanied by reasons and in the present case the trial judge had not only provided reasons for his decisions but on a number of occasions had provided a full written opinion. The speech of the prosecutor set out the basis for the prosecution and thus constituted a "road map" for the jury to follow. The charge of the presiding judge explained the legal issues and identified the elements of the offence. Further, the nature of the right of appeal was also relevant to the giving of reasons. Other than, possibly, a ground of appeal based on the verdict being one which no reasonable jury properly directed could have reached, the assessment of the credibility and reliability of witnesses was entirely a matter for the jury and was not open to review; accordingly there was no need for any reasons as to the jury's findings on credibility for the purpose of enabling review. As respects Taxquet v Belgium, the Solicitor General pointed out that it was not concerned with the system of jury trial in any part of the United Kingdom; it was concerned with different procedures. The decision in Taxquet had been considered by the Norwegian Supreme Court in its decision of 12 June 2009 in A v Public Prosecuting Authority. It did not support any analysis of Taxquet as requiring a jury verdict to be accompanied by the provision by the jury of any reasons for their decision.
Discussion
[203] Setting aside for the moment anything which may flow from the judgment of the Second Section of the ECtHR of 13 January 2009 in Taxquet v Belgium, we consider that it is clear from the judgments and decisions to which we were referred that the ECtHR has consistently recognised that any need, for the purposes of a fair trial, for a court to give reasons is not absolute but depends on the nature of the judicial decision and the particular circumstances of the case and the procedure within which it is being processed. More specifically, in legal systems in which the prosecution of crime involves the participation of lay people, or non-professional judges, in what may broadly be termed a "jury", the fact that, in returning its verdict, such a jury does not deliver an exposition of its reasoning does not in itself involve any infraction of Article 6. In that respect we refer to the passages, to which reference has already been made, in the decisions in Savic v Denmark; Snooks and Dowse v United Kingdom; and Papon (No. 2) in which the view taken is that the absence of any direct delivery of reasons by the jury itself may be offset by the discernability of the basis of the jury's decision from the procedural framework in which the jury operates. We would also mention that, although we were not referred to the decision, in Gregory v United Kingdom (1998) 25 EHRR 577 the ECtHR, at para 44 of its judgment, acknowledged that "...the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury's role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard."
[204] As counsel for the appellant progressed with his submission on this chapter of the appeal, the judgment of the ECtHR in Taxquet v Belgium appeared to assume an important place in his contention. As best we understood counsel's submission, it was to the effect that the judgment indicated the opening up of a new approach to the issue of the giving of reasons in jury verdicts; much more transparency was required and such transparency required that the jury provide a statement of reasons. In light of Taxquet the absence of reasons from the jury, in the context of the Scottish system, led to an infraction of Article 6. In our understanding of the submission it proceeded to a significant extent on the passage at paragraphs 42 to 44 of the Taxquet judgment:
"42 The Court notes that in the Zarouali and Papon cases (both cited above), the Commission and the Court found that 'although the jury could answer only yes or no to each of the questions put by the President, those questions formed a framework on which the jury's decision was based', that 'the precision of those questions sufficiently offsets the fact that no reasons are given for the jury's answers' and that 'this appraisal is reinforced by the fact that the Assize Court must state its reasons for refusing to refer a question from the prosecution or the defence to the jury'.
43 However, since the Zarouali case there has been a perceptible change in both the Court's case-law and the Contracting States' legislation. In its case-law the Court has frequently held that the reasoning provided in court decisions is closely linked to the concern to ensure a fair trial as it allows the rights of the defence to be preserved. Such reasoning is essential to the very quality of justice and provides a safeguard against arbitrariness. Thus certain States, such as France, have made provision for the right of appeal in assize court proceedings and for the publication of a statement of reasons in assize court decisions.
44 The Court considers that while it is acceptable for a higher court to set out the reasons for its decisions succinctly by simply endorsing the reasons for the lower court's decision, the same is not necessarily true of a court of first instance, particularly one sitting in a criminal case."
[205] We were provided with an English translation of the judgment of the Norwegian Supreme Court [Høyesterett] of 12 June 2009 in A v The Public Prosecution Authority[4]. The court sat in plenary session. The leading judgment was given by Judge Indreberg, with whom the other sixteen members of the court agreed. The quotations which we give are all, of course, from the translated version, which bears the armorial symbol of the Court and the heading, in English of "The Supreme Court of Norway". The principal submission for the appellant, A, was that the "conviction, based on a decision by the jury with no grounds given, contravenes the right to a fair hearing which is established in Article 6(1) of the European Convention on Human Rights" (see paragraph 10).
[206] In her judgment Judge Indreberg examines the requirement to give reasons pursuant to the European Human Rights Convention at paragraph 33 and following paragraphs. At paragraph 38 she says:
"38 As regards the requirement to give reasons in jury cases in particular, the approach has long been for the questions to the jury to constitute a framework for the jury's decision, and for precise questions to compensate for the lack of reasons (see the European Human Rights Commission's rejections of the appeals in R v Belgium (30 March 1992) and Zarouali v Belgium (29 June 1994) and the ECHR rejection on this point of Papon's complaint against France of 15 November 2001. A central question in the present case is whether the Taxquet judgment of 2009 may be seen as an expression of the same, or whether it constitutes a change of course and, if so, what weight must be attached to it. In order to be able to assess this, I find it appropriate to look more closely at the first decision of the Commission relating to the relationship between the jury system and the duty to give reasons, R v Belgium, and the development after this decision."
Having thereafter considered that case and also Zarouali v Belgium; Papon v France (No. 2) and also Goktepe v Belgium (in which a finding of an infringement of Article 6 was made on the basis of defects in the questions put to the Belgian jury), Judge Indreberg then examines the judgment in Taxquet and concludes as respects what we might term the ratio decidendi:
"(50) In other words the ECHR concluded that the questions in this case were formulated in such a manner that Taxquet had grounds for complaining that he did not know why they had been answered with yes and that such short answers to vague and general questions could have given Taxquet the impression of an arbitrary administration of justice that was only re-examinable to a limited degree.
(51) This reasoning and the result of the judgment are in my opinion consistent with the Court's previous case law, which imposes requirements in relation to the questions put to the jury to enable them to weigh up the lack of reasons. That which may nevertheless leave behind an impression that a change of course has taken place is, particularly, that which is stated in paragraph 43 concerning the development since the Zarouali case, and in paragraph 48 concerning the lack of reasons for the judgment. There may therefore be reason to look more closely at these paragraphs."
In paragraph 52 the Judge refers to inter alia investigations (apparently prompted by the terms of paragraph 43 of the Taxquet judgment) into other European countries with jury systems [5]. She then continues:
"(53) Paragraph 43 of the Taxquet judgment may be interpreted as expressing that the Court will no longer be content to refer to the Commission's case law of the early 1990s and its own follow-up of this, but will review more actively whether the complainant has had a fair hearing in instances where the case is decided by a jury court, something which the Goktepe case may already have expressed. However a general conclusion that judgments based on unreasoned jury verdicts contravene Article 6(1) of the ECHR cannot be derived from this.
(54) In paragraphs 45 to 49, in which the ECHR undertakes the concrete assessment of the Taxquet case, it adopts as its starting point the questions that were put to the jury. It concludes that these are too vague and general - they may, as stated, leave behind an impression of arbitrariness and a lack of access. I read the subsequent sentences in paragraph 48 (concerning the fact that the complainant has also not received a short summary of why the court is sure that he is guilty, and concerning the fact that the jury has not had access to the case documents), as an elaboration of why the ECHR concludes that a judgment based on these questions does not satisfy the requirement of a fair hearing. At the end of paragraph 48, it is stated that it is important, in order to be able to explain the conviction to both the convicted person and the public, that that which has convinced the jury of the convicted person's guilt or innocence is highlighted, and that precise reasons are given for why each question has been answered positively or negatively. Read in isolation, this sentence may be interpreted as a requirement that the jury must give reasons for its decision. However, I do not find that there is a basis for such a conclusion. It is apparent elsewhere in the judgment (see, among others, paragraph 41), that the ECHR is of the view that account must be taken, in connection with the requirement to give reasons, of the particular form of proceedings in the assize court. If the ECHR had intended to establish a principle that the jury has to give reasons for its decisions, it would not have needed to consider whether the questions to the jury were sufficiently precise. Finally, it must be assumed that the ECHR would have expressed itself more clearly if it intended all of the European states that have jury systems under which the jury does not give reasons to alter their systems. In such case, it would also have been natural for the chamber to surrender jurisdiction to the Grand Chamber (see Article 30 of the ECHR)."
We find Judge Indreberg's full and careful analysis of the Taxquet judgment and the earlier Strasbourg jurisprudence highly persuasive and we respectfully agree with her that the judgment is not to be read as imposing a requirement that a jury supply reasons for its verdict.
[207] Just as in any other jury trial in Scotland, the verdict returned by the jury in the present case is not returned in isolation. It is given within a framework which includes, in particular, the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge. It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the Crown case and the evidence which the Crown invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict. Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted. It is also not suggested that the trial Judge's charge to the jury did not adequately identify all the matters which the Crown had to establish, or fail to analyse or describe the necessary elements or ingredients in the offence. Accordingly, from that framework and also from the evidence in the case, the basis of the conviction is discernable. With a jury verdict thus placed in such a framework, we do not consider, having regard to the case law of the ECtHR to which we were referred, that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of Article 6 of the Convention.
[208] We would add that in the submission as initially presented and also in the ground of appeal, it is suggested that the circumstances of the present case were somehow so complicated or unusual that the normal procedures or framework within which a jury verdict is returned did not suffice. We do not agree with that suggestion. The indictment contained a single charge and, while no doubt a number of legal issues arose in the trial and required to be dealt with by the trial judge, the matters for the jury were not in our view extraordinary or particularly complex. As the Solicitor General pointed out, the circumstances prospectively involved in the jury trial in Transco were considerably more difficult and complicated. Further, we would add that the fact that the Crown case was largely circumstantial clearly does not take this case out of the ordinary.
[209] Accordingly, for these reasons we are unable to uphold this ground of appeal.
(IX) - DISCLOSURE OF STATEMENT OF IRENE CALLAGHAN
[210] This ground of appeal - the additional ground of appeal - centres upon a statement, apparently noted by the police on 16 December 1999, from Irene Callaghan, a fellow employee of the deceased who had attended the works outing to the Foxbar Hotel on the night of Saturday 4 December 1999. The document was first placed in the hands of the appellant's representatives by the Crown in September 2009. Given the timing of that disclosure of the document, the court decided that the additional ground could not be rejected on grounds of the lateness of its being tendered and thus allowed it to be argued.
[211] As is already apparent from what is said in Chapter (V) of this Opinion (Sufficiency of Evidence), Irene Callaghan gave evidence at the trial. Her evidence concerned what may shortly be described as the evidence of the deceased's progress from the hotel to the centre of Kilmarnock, involving his falling and the episode with Boax. It is briefly summarised, as part of a summary of the Crown submissions, in paragraph [115] above.
[212] The additional ground of appeal is relatively lengthy and it is not necessary to set out its terms in full. The central contention in the Supplementary Note of Appeal is that as a result of the police statement not having been disclosed prior to the trial -
"...counsel for the appellant was prevented from calling the witness [Irene Callaghan] or making use of the information contained in the statement in his cross-examination of the other witnesses led by the Crown. Had the witness been called or had the points in the statement been put to the witnesses the Crown's case that the injury [to the deceased's face] had been inflicted by the appellant might have been undermined"
The Note continues by submitting that were the trial judge to have heard the evidence of that witness he would have been likely to have sustained the submission made by counsel for the appellant following the Advocate depute's address to the jury respecting the averment of "punch him on the face".
[213] It is plain that the drafter of the Note proceeds under a serious misconception. Irene Callaghan was included as a witness on the list annexed to the indictment, and so could have been called by the defence, had it not been that, of course, she was in fact called by the prosecution and cross-examined by the defence. Further, while her police statement might in theory afford scope for cross-examination on the basis of a prior inconsistent statement, it could not be deployed as a tool of cross-examination of other witnesses, as the drafter seems to have thought.
[214] Be that as it may, in the event the Court tacitly indulged counsel for the appellant by listening to a submission to the effect that the non-disclosure of the police notes of Mrs Callaghan's interview on 16 December 1999 impeded counsel in his field of cross-examination on the basis of a prior inconsistent statement. As matters emerged in the argument before us, the only possible differences between what the police noted as being Mrs Callaghan's account and her ultimate evidence was that in the former she is recorded as having said that she noted blood at the left side of the deceased's mouth following a punch to the deceased's face by Boax; that apart, she saw no other injuries to the deceased; and that, following the cessation of the fight or altercation, the deceased began to punch his own head - something which he had done before when drunk.
[215] In preparation for the trial, Mrs Callaghan was precognosed by both sides. When precognosed by the Crown, Mrs Callaghan's precognition did not include those particular, claimed differences. She was also precognosed by the defence, and the result of that exercise was the production of a defence precognition not distinguishable in its essentials from that compiled by the procurator fiscal. The evidence given by the witness was essentially in terms entirely along the lines of the precognition respectively prepared by each side following their respective interview of the witness.
[216] In the course of his submissions on this ground of appeal, counsel for the appellant embarked on a discussion of the extent of the Crown's duty of disclosure in light of recent, familiar decisions of the Privy Council, to which discussion the Solicitor General thought himself obliged to respond. Given that the Crown voluntarily disclosed the police note of what the police recorded as their understanding of what Mrs Callaghan said on 16 December 1999, albeit only in September 2009, and given our understanding of the present practice of disclosing all police notes of interviews with witnesses, at least those listed on the indictment - as was Mrs Callaghan - we do not think it useful to enter into that discussion.
[217] The submissions of counsel also embraced elaborate submissions whether the failure to disclose the police note invoked the tests for the admissibility of new evidence (set out in Al Megrahi v HM Advocate at paragraph 219), or the test respecting non-disclosure set out by the court in McInnes v HM Advocate 2008 SCCR 869 at para [20]:
"the Court is not entitled to adopt a test which depends simply on whether the denial of access might possibly have affected the outcome, that in the context of determining whether there has been a miscarriage of justice (or, the court ventured to think an unfair trial) a robust test is required, the test of a real risk of prejudice having been rightly adopted in Kelly v HMA 2006 SCCR 94 at paragraph 20."
As respects the former, despite what was ventured by the Solicitor General respecting the availability of the evidence at the trial, we are prepared in deciding this ground of appeal to proceed upon the assumption that the non-disclosure of the police note constitutes a reasonable explanation for its not having been available at the trial; and so, as respects the new evidence test one is concerned essentially with what is said at sub-paragraphs (5) and (6) of paragraph 219 of the Opinion in Al Megrahi:
"[5] The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonably jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.
[6] The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue in a trial."
[218] At the time at which we heard the argument in this appeal, and at the time of the initial drafting of this section of our Opinion, McInnes v HM Advocate was pending before the new Supreme Court of the United Kingdom. In its recently issued judgment in that appeal [2010] UKSC 7 the Supreme Court of the United Kingdom has, we think, endorsed the McInnes test. But in order to avoid any further need for debate on that decision we would simply record that, in the circumstances of this appeal, we had, in the event, come to the view that it was unnecessary to enter into any extended discussion of the possible differences between the two tests and, assuming there to be was a material practical difference, which is the appropriate one. On either view we considered that the outcome is the same.
[219] On the McInnes approach we observe in limine that, as we have already stated, the witness, Mrs Callaghan, was precognosed by both sides and the results were essentially the same; and her evidence given did not materially depart from the precognition. So it is perhaps unlikely that Mrs Callaghan would readily and persuasively accept the accuracy of the police officer's note of the interview; and were she not to do so, evidence from the police officer to contrary effect, if accepted, would not of course establish the truth of the statement, but might damage her reliability and thus impede the defence in its invocation of the evidence of Mrs Callaghan as undermining the Crown contention. But more importantly, were Mrs Callaghan, on being presented with the terms of her statement as noted by the police officer, to have accepted that she did see some blood at the mouth of the deceased, following a punch from Boax, and that at some point shortly thereafter the deceased, having got up from the ground, began to punch himself in accordance with a proclivity seen by the witness on previous occasions when drink had been taken, we are unable to see how those additional matters materially assist the defence contention that the serious facial injuries, including the fractures of the underlying bone structures, were caused prior to the deceased's entry to the appellant's flat. Were the jury to take account of those additional matters, that account would have to be taken not only in the context of all of the rest of Mrs Callaghan's evidence, but also the wider context of all of the other evidence respecting the Boax encounter and events preceding and succeeding, including the evidence of his seeking entry to the Club in an uninjured state; and, of course, the medical evidence. We therefore have grave difficulties in seeing how, realistically, disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome. We are accordingly satisfied that the absence from the defence file of the police note of their interview with Mrs Callaghan (an absence also shared, we understand, by the trial Advocate depute) did not result in material prejudice to the appellant or in the trial being unfair. Further, for the reasons which we have already indicated, even were Mrs Callaghan to have accepted having seen some blood at the mouth of the deceased and that the deceased later punched himself, we do not consider that the additional evidence, taken in that wider context to which we have referred, would have been of material assistance to the jury or have had a material bearing on their determination of the issue in question. We thus also consider that, viewed in the optic of fresh evidence, the relevant test is not met.
[220] For all of these reasons, we have come to the opinion that the additional ground of appeal is unsound and cannot be upheld.
THE FINAL RESULT
[221] We are thus unable to hold that any of the several grounds of appeal advanced on the appellant's behalf is sound. Counsel for the appellant however also urged us not to consider the grounds solely on their several bases, but also jointly or collectively, on the contention that while individually no ground might be sufficient to warrant allowance of the appeal there might yet be a sufficient kernel within each of a plurality to persuade the court that a miscarriage of justice had occurred. No authority was cited to us for such an approach, but we have given it consideration. In the event, we are not so persuaded. The appeal must therefore be refused.
[222] In conclusion it is appropriate to record that in the preparation and drafting of this Opinion of the Court, each member of the Bench made a substantial contribution.