For the appellant: Shead, Richardson; Culley & McAlpine, Perth

For the Crown: K D Stewart QC, AD; Crown Agent

26 June 2009

[1] On 5 August 1998 the appellant and his brother Alan Woodside were convicted at Glasgow High Court on the following charge:

"On 17 January 1998 at Croftend Avenue, Croftfoot, Glasgow, near Lugar Place, you ALAN WILLIAM WOODSIDE, ALEXANDER WOODSIDE ... did assault John Hampson ... and chase him, throw a bottle at him which struck him on the head whereby he was knocked to the ground, strike him repeatedly on the head and body with knives or similar objects and did murder him."

We have already dealt with two grounds of appeal. We now have to consider whether the trial judge misdirected the jury.

[2] In my Opinion on the previous grounds dated 18 February 2009 I described the evidence in the trial at some length. For the purposes of the present ground of appeal I need describe the Crown case in only the briefest outline. On the evening before the murder the appellant was attacked by members of a local gang, one of whom pushed a broken bottle into his face. At the scene of the attack the appellant threatened revenge. Later that night he told his mother that he would "murder the bastard who slashed him." On the night of the murder, he was one of a party who assembled at the home of his sister and his brother-in-law and armed themselves with various lethal weapons, all of which were openly on display. The appellant armed himself with an axe. His brother armed himself with a bayonet. The group then set off to confront the gang who had attacked the appellant.

[3] At the approach of the appellant's group, the deceased failed to make his escape. The appellant and his group surrounded him and attacked him. The appellant's brother stabbed the deceased through the heart. There was evidence that the appellant was directly involved in the attack.

[4] On the following day, at a gathering in his parents' house, the appellant said that perhaps it was he who had killed the deceased because he had smashed the back of his head like a coconut. The appellant and his brother then went into hiding in Coventry. According to the appellant's mother, when the appellant was in custody he admitted to her and his father that he had "hit the boy on the back of the head with a hatchet" before his brother stabbed him.

[5] The appellant's evidence was that he set off with the group for the confrontation, but left them before they reached the locus; that he took no part in the attack; and that he was not at the locus when the deceased was stabbed.

[6] The Crown sought a conviction of murder against the appellant on the basis of concert.

[7] The trial judge directed the jury on the definition of murder and on the principle of concert. The advocate depute submitted to us that, in substance, the trial judge also gave a direction on the possibility of their convicting the appellant of culpable homicide; but in my view, even on the most contrived reading of the charge, it cannot be said that he gave such a direction. On the contrary, I think that it is obvious that he did not intend to do so.

[8] It is accepted on behalf of the appellant that, in his address to the jury, his solicitor advocate did not raise the possibility of their convicting the appellant of culpable homicide. The sole issue is whether the trial judge was nevertheless obliged to direct the jury on that question.

[9] Decisions of this court since the trial in this case establish that where two or more accused have taken part in an attack on the deceased and the Crown seeks a conviction of murder against one or more of them on the basis of concert, the trial judge must direct the jury on the possibility of their convicting any of those accused of culpable homicide if, in the circumstances, such a conviction could reasonably be returned (McKinnon v HM Adv 2003 JC 29; Touati and Gilfillan v HM Adv 2008 JC 214; Ferguson v HM Adv 2009 SCCR 78; Hopkinson v HM Adv 2009 SLT 292). All of these are decisions in cases where, it seems, the appellant admitted that he took part in an attack on the deceased.

[10] This case is entirely different. The appellant's defence was that he dissociated himself from the group of assailants before they reached the locus, and that he was not involved in the attack in any way.

[11] I shall assume that in a case such as this, the trial judge may be obliged to direct the jury on culpable homicide on a hypothesis of fact that the accused expressly denies. Even on that assumption, I do not consider that the trial judge in this case was obliged to give such a direction.

[12] In every case of this kind, it is for the trial judge to decide whether a conviction of culpable homicide could be justified on any reasonable view of the evidence. We may infer that the trial judge did not consider that in the circumstances of the case a conviction of the appellant of culpable homicide was a live issue. In my view, he was right.

[13] On the evidence that I have summarised, the only realistic options for the jury were to acquit the appellant on the basis that he did not take part in the attack or, if they decided that he did, to convict him of murder on the basis that his actions and statements were such that no other verdict could reasonably be returned.

[14] I propose to your Lordships that we should refuse the appeal on the present ground and continue it for consideration of the one remaining ground.