APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Carloway Lord Brailsford	[2010] HCJAC 45 Appeal No: XC732/05 OPINION OF THE COURT delivered by LORD CARLOWAY in the Note of appeal against Conviction by JOHN McDONALD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: SM McCall, Templeton; Capital Defence Lawyers (for Ian Moir & Co., Glasgow)

Respondent: Bain QC, AD; the Crown Agent

7 May 2010

1. General and Procedure

[1] On 1 September 2005, at the High Court at Glasgow, the appellant was convicted of two charges which libelled that:

"(1) on 6 February 2005 at 175 Leithland Road, Glasgow you did assault Kevin Stephen McCluskey, ...repeatedly kick at, and force open a front door there, repeatedly discharge a handgun or similar instrument through said door and repeatedly shoot said Kevin Stephen McCluskey on the body to his severe injury and you did murder him;

you did commit this offence while on bail, having been granted bail on 20 July 2004 at Glasgow District Court; and

(2) on 6 February 2005 at 175 Leithland Road, Glasgow you did assault Colin O'Neill,... and shoot him on the body to his injury".

The appellant was also convicted of related statutory firearms offences. On 22 September 2005, he was sentenced to life imprisonment on the murder charge, with a punishment part of 18 years, to date from 3 March 2005. He was sentenced to a variety of concurrent periods of imprisonment on the other charges.

[2] On 23 December 2005 the appellant lodged a note of appeal against conviction containing a straightforward ground as follows:

"That in order to corroborate the charges, the Crown relied on the evidence of a witness designed only as Witness "P". His identification of the appellant was essential to the Crown case. This witness provided identification evidence by reference only to the perpetrator's eyes, as his face was partially concealed by a hood, but identified the appellant in the dock as being that perpetrator. His evidence was based on seeing the perpetrator from a distance of some 10 metres, whilst looking down to the opposite pavement of a street from an upstairs window. He gave this evidence after a period of prevarication, and having initially made no identification. On the basis of the nature of the identification by reference only to the perpetrator's eyes, and on the basis of the manner of the giving of his evidence, no reasonable jury properly directed ought to have attached sufficient weight to that evidence to find a sufficiency of credible and reliable identification that would allow them to convict the appellant".

This was the same ground of appeal that was eventually argued before the Court at the hearing on 25 March 2010, over four years after the conviction.

[3] The reason for the prolonged delay requires explanation. It is in short, if disturbing, compass. Leave to appeal was refused at first sift on 16 February, but granted at second sift on 29 March 2006. Although the appeal could have proceeded to a hearing on the stated ground within a relatively short time scale after the grant of leave, that did not happen. Rather, there was a series of Procedural Hearings at which it was repeatedly stated by the appellant that the appeal was not ready to proceed. First, Hearings for 16 May, 6 and 20 June were withdrawn from the Court rolls because it was said that the appellant's nominated counsel had not been able to consult with him. When the appellant had consulted, he wanted a second opinion. Hearings for 28 June, 3 and 9 August, 3 October and 14 November were withdrawn to enable this to occur. A Hearing set down for 24 November did not proceed because it was said that "further enquiries required to be made re 'Disclosure' and consideration was being given to the lodging of a transcription request".

[4] Hearings set for 16 and 23 January 2007 did not occur because it had not been possible for counsel to consult with the appellant. The "position with regards to 'disclosure'" had still not been "clarified" by the time further Hearings set for 8 February and 4 April 2007 were withdrawn. It appears that a year had thereby passed with little constructive being done to progress the appeal; other than, in June 2006, the Crown requesting the Court to authorise transcription of the testimony complained of by the appellant in the Note of Appeal.

[5] At a Hearing on 9 May 2007, the appellant complained that he had not been given copies of statements of witnesses or details of the witnesses' previous convictions. By the time of the next Hearing on 6 June, a petition for the recovery of documents had been lodged and the relative application was heard in August 2007 (by which time a devolution minute had also been lodged) and November 2007; the Court refusing the prayer of the petition and receipt of the minute on 21 December 2007. Although the Court refused leave to appeal to the Privy Council, it appears that special leave was granted and the appeals were heard and dismissed on 16 October 2008 (2008 SCCR 954). By that time, certain additional disclosure had occurred but, given the nature of the appeal eventually presented to the Court, whatever was disclosed had no bearing on the ground of appeal. The case called again on 1 July 2009 when it was appointed to a full hearing.

2. Evidence

[6] The trial judge outlines the evidence in his report as follows:

"...about three years [previously] the appellant's father, Derek McDonald, was murdered, apparently having been stabbed and left to die in the street. The McDonalds were a family, many of whom lived in Pollok in Glasgow. It was...generally believed by them that Kevin Stephen McCluskey (the deceased) was responsible.

On Sunday 6 February 2005 the deceased went to his parents' house at 175 Leithland Road, Pollok in Glasgow. He regularly went there on a Sunday for his dinner. On this occasion he took an acquaintance, Colin O'Neill, who was there mainly to do some joinery work in a bedroom. ...The livingroom looked directly out to the short pathway to the front door and onto the street. At about 4.45 in the afternoon the deceased, who had been sitting on a chair in the livingroom, apparently noticed someone coming down the path and without saying anything went into the hallway, moving towards the front door. A loud banging was heard at the door as if the door was being kicked. The deceased was seen by Colin O'Neill approaching the front door from the inside and turning and putting his finger to his mouth as if to say to keep quiet. It appeared from evidence discovered afterwards that the deceased must have had a knife with him. Thereafter shots were fired through the door from outside, killing the deceased.

A number of witnesses were led in evidence who were in the area outside at the relevant time. A number of these were allowed to give evidence by reference to a letter of the alphabet only (without revealing their true identities) and some of these witnesses were children. There was little doubt from the evidence led as a whole that a man wearing a jacket was seen to walk along Leithland Road from its junction with Leithland Avenue, walk up to the front door at 175 Leithland Road, repeatedly kick at it and then repeatedly discharge a handgun through the door, before moving quickly back to Leithland Avenue where a car was waiting to take him away. ...There was no dispute in the trial that he had been murdered, and that apparently by somebody intent on killing him.

The critical witness for the Crown was a witness 'P' (a young man in his early twenties) who gave evidence of identifying the appellant from certain photographs which were shown to him by the police and of later identifying the appellant at an identification parade. Although he did not see the whole face of the gunman it was a person he thought he knew. It appeared his identification depended upon the eyes, skin colour and eyebrows. At one point he said 'I don't think you forget the eyes of a killer'. Although it was plain from the evidence that another witness 'F' (a woman aged 43) had given a number of detailed statements to the police explaining how she had seen somebody called Jaffa McDonald (the appellant's nickname) apparently carrying out the crime and that she could identify him, her position on oath was that what she had said was not true.

The Crown sought support for witness 'P' in evidence of a number of facts and circumstances. The jury were invited to take the view that the evidence from a number of witnesses reasonably pointed to the conclusion that the jacket worn by the gunman was like Label 2, a cream coloured bubble jacket. Reference was made to the evidence of a witness 'K' (a boy) that the gunman was wearing a fawn puffer or bubble jacket. Witness 'C' (another boy) described the gunman as wearing a cream puffer jacket. Witness Gordon Lannigan described the gunman as wearing a cream puffer jacket and when shown Label 2, said that it 'looked similar, aye'. Another witness 'O' (a male of about 43) described the gunman as wearing a light coloured bubble jacket. In examination-in-chief, he said that Label 2 was similar to the jacket worn. It was that sort of style and colour. The significance of that was that there was evidence from police officers that they found the jacket Label 2 on 18 February 2005 at 66 Hapland Road, an address where the appellant lived all or much of the time with his mother, on a bed in the appellant's bedroom. In answers to questions in a police interview the appellant said that the bedroom was not used by anyone else for anything. Although it was a ladies jacket at least some male DNA was on it. More significantly firearms discharge residue was found in four areas on it. The evidence of a forensic scientist, Karen Robertson, was that this finding was at least consistent with the wearer of the jacket having discharged a firearm on 6 February. In addition there was found a piece of paper within a DVD in the same bedroom with certain writing on it which the appellant accepted he had written. The writing included inter alia 'Kev McCluskey - shot'. The Crown invited the jury to take the view that this was a wish list or serious statement of intent. The appellant in interviews with the police accepted, at least in due course, that he understood that Kevin McCluskey was responsible for the death of his father.

The appellant lodged two special defences, one of alibi claiming that he had been at 66 Hapland Road, Pollok at the material time. This address was only five minutes or so away by car from where the deceased was killed. The jury cannot have accepted the appellant's evidence to this effect. Further there was a special defence of incrimination blaming the appellant's uncle, James McDonald and somebody called Andrew Hamilton. There was evidence from a defence witness, William Lacey (the appellant's uncle) which suggested that James McDonald had arranged for the murder of the deceased and for Andrew Hamilton (who was a drug addict) to carry out the deed as the gunman in return for payment in drugs. Evidence was also lead of certain remarks apparently made by Andrew Hamilton to two witnesses, Moira Quinn and Paul McGeady, which were said to be suggestive of a confession. Both James McDonald (who had an extensive criminal record and who in the evidence was described as a gangster who ran Pollok as his domain), and Andrew Hamilton denied any involvement from the witness box. The jury must have rejected the evidence in so far as it suggested that Andrew Hamilton was the gunman...".

Specifically in relation to the ground of appeal, the trial judge comments:

"...it is correct to say that witness 'P' was a critical witness for the Crown. This was accepted by the Advocate Depute and the jury were directed accordingly... Had I thought that his identification evidence was such that no reasonable jury could have founded upon it, I would have directed the jury accordingly. I did not".

[7] Although the trial judge provided a very full report on the testimony given by P, all of which is confirmed by the transcript, it is instructive to consider, at least in part, the precise terms of that transcript to see just what peaks and troughs P's identification of the appellant reached. P had been specifically looking out of a window in a house in Leithland Road because he had been expecting a taxi. When asked an open question about what he saw, he gave a relatively long and detailed reply (transcript p 5) as follows:

"I just seen somebody walking along the street which I never really paid attention to and then I was looking out and then I heard a bang and I turned round and I seen someone kicking the door and then I was like... sort of looking away at the same time because I was quite shocked and then all of a sudden I heard banging and that is when I noticed there was a gun. Then the firing started but somewhere in between there must have been a hole made in the window at the door and the person had their hand through the door, the window, with the gun and it was as if he was trying to angle it down but it couldn't because of the glass... Then the door was sort of ...open as if somebody was behind it and it was opening a bit and then I seen someone lean in, a final shot going off and then that was it".

[8] The Advocate Depute proceeded by asking P to describe what the gunman had been wearing. It was established that he had a white jacket, tucked into the side, with a hood which was up. The jacket was zipped to underneath the gunman's nose. He was wearing a skip cap. The Advocate Depute then shied away from identification back to the circumstances of the incident, which P said lasted "just a couple of minutes" (p 15). But, returning to identification, P said that the gunman had taken his hood down "for a couple of seconds" as he went towards the door "as if he was wanting to show whoever was in the house who it was". There is then the following exchange (pp 16-18):

"And during the period when the shots were fired and so on, what was the position so far as his hood was concerned? - I think he put it back up.

And what about when he left the garden? - I think it was up then.

You think it was up? - Yes

Did you get a good look at the person? - Not really. I could only see his eyes....

Would you recognise him if you saw him again? - I'm not sure...

Do you want to have a look around this Court for me please and tell me whether you see the individual? - I could only see his eyes.

I think what I had asked you to do was to have a look around the Court and see if you could see the individual. I saw you having a look. Can you help us with that? - Not really, no.

Not really. What does that mean? - I only seen his eyes.

Is that the only look you got at him? - From the front, yes...

You have obviously been able to give a fairly detailed description of what took place at the front door of Mr McCluskey's house? - Yes.

So is it reasonable to assume that you had a pretty good view of what was going on? - I had a good view, yes.

Of the man going in, of what took place at the door and of the man leaving? - Yes".

[9] The Advocate Depute appears to have gained the impression that P was prevaricating, because he suddenly challenged the evidence that P was not sure whether he would be able to recognise the gunman if he saw him again by reference to events at an identification parade on 6 March 2005. The way the evidence progressed was with P saying that what he had been asked to do at the parade was to pick out the person whom he had "seen in the photograph" (pp 19-20). P said that he had done that by picking out the appellant ("The man sitting over there"). He gave an account of being shown certain photographs and picking out two persons, only one of whom was at the parade. The evidence continues:

"And you were identifying this person in the parade as having done what? - As maybe being there that day...

You identified him at the identification parade as what? - Maybe being the person that was responsible for being there that day."

[10] In light of P's responses, the Advocate Depute explored what had happened with the photographs. P said that he had been shown a "couple" of pages of photographs and had picked out a "couple" of people (p 25), whom he thought "it could have been" "or who was there that day" (p 26). P thought that he had picked out two people, one from each page of photographs, with the appellant on the second page. At this point the Advocate Depute effectively accused the witness of perjury (p 29). The witness reverted to saying that he "could only see his eyes", before acknowledging that he had also noticed the shape of his face. It was then that P said that he "knew who he was but...". He "knew him to see about but... never really knew him" (p 30). But, as P explained, he had never been asked whether he knew the gunman until he had left the police station after looking at the photographs on 24 February 2005. At that stage he had described the man to the police in relation to build (medium) and age (late teens, early twenties).

[11] After an adjournment requested by the Advocate Depute, the questioning reverted to the photographs and P said that he had identified the appellant at the parade as the person whom he had picked out from the photographs as being "there that day", although he was not "100 per cent sure" (p 36). He put the percentage chances of the man in the photograph being the gunman at "about 50 per cent.", saying that the other person whom he had picked out had a similar face and eyes. It had been when he was being given a lift by the police after looking at the photographs that he told the police that he knew the person to be "John McDonald". He "knew him with staying in Pollok and I went to the same school as him" (p 41). But the Advocate Depute departed from this area and began asking P about the statement he had given on 16 February 2005, in which he had described the gunman as having a "pale complexion, possibly 19 to early 20s, 5 feet 8 to 5 feet 10 in height, stocky - heavy build" (p 45). The examination about the statement continues (pp 47 et seq.) at some length:

"This part of the statement begins 'The person I have described with the gun I have seen before'. Did you say that to the police? - Yes.

Was it true? - Yes

Yes? - Yes

'I know his face'. Did you say that to the police? - I can't remember saying that. I never seen his face. I seen his eyes.

...

When you were talking to the police were you trying to tell the police the truth? - I was telling them the truth.

...So if you told the police 'I know his face', was that the truth? - Uh-huh.

...

So from what you could see of his face, you knew his face? - I thought I knew his face, yes.

Does it go on 'I think he may be my age'? - Yes.

Did you say that to the police? - Yes.

Was that true? - Yes.

'Possibly gone to my school'? - Yes.

Was that true? - Yes.

'But I definitely know him from the Pollok area'. Did you say that to the police? - Yes.

And was that true? - Yes.

Right. So the person who was at the door of the McCluskeys' house was someone who you had seen before? - Yes.

Was someone whose face you knew? - Yes.

Was someone who was your age? - Yes.

And was someone who you definitely knew from the Pollok area? - Yes.

Does your statement go on 'I would recognise this person again'? - It does say that, yes.

Is that true? - Yes. Possibly, yes".

[12] The Advocate Depute appeared to be treating P almost as hostile during this passage. The examination continues (p 53):

"So the person who [you] describe with the gun you had seen before, you knew his face, you thought he might be your age, possibly gone to your school and you definitely knew him from the Pollock area? - Correct...

Do you see the person in Court today? - Yes.

Would you point to him please? - He is sitting over there".

Under reference to a further statement given to the police when viewing the photographs on 24 February 2005, P confirmed that the person he had picked out (photograph 6 on the second sheet) was the appellant and was also the gunman (p 58). Under reference to another statement of the same date, taken after the conversation in the police car after the viewing of the photographs, the witness said that he had recognised the person he had picked out from school. He again said that he had picked out a second person from the photographs; but only as a person he had known. The passage concludes (p 62):

"All right. So let's try and understand this if we can. You are positive that you picked someone out from the first set of photographs? - I am positive...

And what was it you were saying about that person? - Just he had similar features.

...You then go on and look at a second sheet of photographs? - Yes

And this time you identify John McDonald? - Yes

And you identify John McDonald as the man who was at the McCluskeys' door and the man who used the gun? - Yes

So where does that leave the man you identified in the first book of photographs? - ...No idea

...

So the first man, whoever, he may or may not have been, has nothing to do with this case? - No".

[13] In cross-examination, defence counsel first attempted, with some success, to persuade P that the other person, whom he had picked out from the photographs, was also being identified as a candidate for gunman. He brought out the witness's view that the jacket produced in court had not been the one which he thought the gunman had worn, as the latter did not have fur on it (p 71). He established that the witness had been looking at the incident from a first floor window (10 feet up) about 30 feet away from the doorway. The witness agreed that the view of the gunman's face had been as if he had been wearing a burka (p 75). His view had only been "basically" for a "couple of seconds" (p 77). He agreed that his identification could have been "entirely wrong" (p 78) and that it had been made when he felt that he had been put under pressure by the police (p 81). The pressure had been to pick out the person he had identified in the photographs (p 86). It was at this point that the Court adjourned for lunch.

[14] After lunch, it was established that P had been two years junior to the appellant at school. The appellant had left school some five years previously. Counsel retraced his steps in relation to distances and to the burka. He again extracted from P that he "could be entirely wrong about the whole thing" (p 92) and that he had been identifying the appellant "by eyes alone" (p 99). Having got that far, counsel decided to probe how the witness had made the identification at the identification parade (pp 105-108):

"Let me follow the process by which you got to identifications? - I just basically looked at his eyes and just kept on looking at his eyes...it looked like they were the same...similar shapes...They just looked half closed".

Reaching its zenith of its effectiveness, the cross-examination continues (p108):

"...In the circumstances in which you have described that identification, do you accept that it is virtually impossible to make any kind of accurate identification? - Yes.

Now, you have agreed with that with me? - Yes".

But the following exchange then occurs (p111):

"I will ask you this again because I must have this right please. Do you accept that the circumstances in which you got a couple of seconds glance at a man's eyes which are half closed at a distance of over 30 feet render an identification almost virtually impossible? Do you accept that? - I wouldn't say it was virtually impossible.

What would you say? - I'm not sure what I would say but I don't think it is virtually impossible.

Well, you tell me how it is possible because I don't understand it. It is my fault no doubt? - Because I don't think you forget the eyes of a killer.

Sorry? - I don't think you would forget the eyes of a killer".

Perhaps slightly thrown by that answer, counsel asks three essentially immaterial questions and then this exchange happens:

"Come on. Can we get real please? It is too important not to be able to give proper answers. Is that seriously your evidence? Is it? - Well, when I think about it, it is the things that are round the eyes that count as well, like skin colour and bone and eyebrows".

After an adjournment because P felt dizzy, the cross-examination resumed along previously developed lines until reaching its nadir in the following (p 121):

"[...] If you are asked the question again who is the killer, is the answer to that question I don't know? - No.

Was that uh-huh? - That was no.

So who is the killer? - I believe it was John McDonald.

You believe it was John McDonald? - The eyes from what I seen and the skin colour in the picture.

Eyes and skin colour. Let's leave it at that if we can. You have told us at various points in your evidence today that you could be entirely wrong, yes? - Yes, ...

Sorry? - I'm confused.

What are you confused about? - I was sure I was right until you obviously came up and started speaking...".

There follows a repetition of matters previously covered before another exchange (p 123) as follows:

"Against all of that, how can you stand there and tell us that you know who was the killer? How is it possible? - Because I can still see his eyes in the back of my head.

You can do what? - I can still see his eyes in the back of my head. I see it every time I shut my eyes...

What I can't get over, and it is entirely my fault no doubt but I would like to hear a proper and convincing explanation from you if I can as to how a glance in a couple of seconds at 30-odd feet, 32 feet, from a downward view when the person's eyes are closed you can tell us you are sure? How is it possible? - If you were there you would know".

[15] Re-examination includes the following (p 130 - 131):

"And you picked [John McDonald] out at an identification parade as what? - Being the killer.

As being the killer and before you picked him out at the identification parade you picked him out from a selection of photographs? - Yes.

As what? - Possibly being the killer...

How did he go from possibly being the killer when you looked at the photographs to being the killer when you looked at the ID parade? - Because when I was looking at the photos it was half an[d] half and then there was an ID parade and I looked at his eyes...I got a better look...I was more than convinced...".

P agreed that it had not just been the eyes themselves that had caused him to make his identification and that he had had an opportunity to observe the gunman for more than two seconds, perhaps more than fifteen seconds.

[16] The trial judge makes the following comment in his report about P's evidence:

"It is said that he initially prevaricated. Although his evidence took some time, he did not I think prevaricate at any time as that word would normally be understood. He did, for whatever reason, however, give evidence initially which was less definite in relation to identification than the Crown apparently expected. It will be recalled that he was one of a number of witnesses who, given apparent concerns for their safety, were allowed to give evidence by reference to a letter of the alphabet only (without revealing their true identities) and indeed he and others were also screened from members of the public".

3. Charge

[17] The trial judge charged the jury on identification as follows:

"First of all, it is clear from the way in which the Crown presents the case that the evidence of witness 'P' is central to the Crown case, indeed he is a critical witness to the Crown case, and because of that I direct you as a matter of law, as I think the Advocate Depute himself accepted, if you do not find his evidence in relation to identification of the accused as the gunman to be credible and reliable you could not convict the accused of charge 1 or indeed any of the charges on this indictment and you would be bound to return a verdict of acquittal.

Secondly, it is right in this case as in any case where so-called identification evidence has been given for me to give you certain general directions as to how to approach that kind of evidence. Where evidence relating to an apparent identification of a person or indeed of an item of clothing is given by a witness in a trial such evidence must be approached by the jury with particular care, witnesses can be mistaken. A witness need not be a hundred per cent certain before a jury could rely on that witness's apparent identification of a person or a piece of clothing but in assessing whether the jury could rely on the evidence it would be right for the jury to ask themselves for example in relation to an apparent identification of a person what opportunity the witness had at the time to see the person, what time was available, what the lighting was like, what were the distances involved, how much of the person was visible, whether the person was known to the witness in question. You may think that these considerations are all really commonsense but it is very important in any trial that juries ask themselves these questions in relation to identification evidence. It would also be right for a jury to consider evidence about the whole circumstances of when and how the witness is said to have made an identification of a person or item of clothing, whether that is said to have taken place at an identification parade as to the whole circumstances of which it would be right to take account or whether it is said to have taken place earlier when certain photographs were shown to the witness, again as to the whole circumstances as disclosed in evidence the jury would be right to take account. Equally it would be right for the jury to consider whether any identification could have been influenced by anything apparently happening after the occurrence of the offence but before the identification was made. For example, if in any case a witness has apparently identified an accused not only at an identification parade but earlier having seen some photographs, it would be right for the jury to consider whether the later identification parade identification could have been influenced by what took place at the time the photographs were seen and to assess and to ask themselves whether that affects the jury's view as to the reliability of the later identification. It would be right equally to consider whether on the evidence any identification, whether made at an identification parade or from any kind of photographs, might have been influenced by things said to witnesses beforehand, for example by police officers, and again to assess whether that could affect the jury's view of the reliability of any identification that may have been made. These are all I hope commonsense matters but it is important that a jury in any case bear these considerations in mind."

4. Submissions

(a) APPELLANT

[18] In a clear, well researched and structured address, it was submitted that, in terms of sub-section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, the jury had "returned a verdict which no reasonable jury, properly directed, could have returned". This required demonstrating to the court that no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty; the test being an objective one (King v HM Advocate 1999 JC 226, LJG (Rodger) at 228-229; AJE v HM Advocate 2002 JC 215, LJ-C (Gill) at paras [28]-[37]). In the present case, no reasonable jury could have accepted the evidence of identification given by P. Since the corroborating circumstances were not in themselves incriminating, the jury would not have been entitled to use these circumstances to support the identification since they were also consistent with innocence.

[19] The question was whether a reasonable jury could have failed to hesitate or pause before accepting P's identification of the appellant. The answer to that was in the negative. The particular features in his evidence included: (1) the time available to see the gunman from the front; (2) the distance from which he was viewing the scene; (3) the angle of his view; (4) the extent of the identifiable features visible to P; (5) the trauma of the moment; (6) the possible pressure applied by the police; (7) the possible contamination of the identification by the process of showing the photographs; (8) the initial failure of P to make an identification when interviewed by the police; (9) P's own unfavourable estimation of his reliability; (10) confusion on whether P was identifying the appellant as a person at school with him or as involved in the offence; (11) P's identification of another person in the photographs; and (12) P's changing positions in his testimony.

[20] Although it was accepted that a jury could accept part of a witness's evidence and reject other parts, this was a qualitative analysis. There were inconsistencies in P's testimony, which could be seen from the printed page and the trial judge and jury did not have an advantage over the appellate court in this regard. There were also inconsistencies between P's evidence and his prior statements to the police. There was no coherent body of evidence; the hallmark of sufficient quality (cf Connelly v HM Advocate 2000 SCCR 861). The evidence had to rise above a base line of quality. It could not do so if there were significant inconsistencies or obvious weaknesses (Smith v HM Advocate 2005 JC 242, LJG (Cullen), delivering the Opinion of the Court, at paras [22] - [23]; cf Anderson v HM Advocate 2007 HCJAC 50, Lady Paton, delivering the Opinion of the Court, at paras [36] - [37]). There were inconsistencies and weaknesses, such that P's evidence did not rise above the required line. There required to be a rational basis for the jury's decision and there was none.

[21] The statutory test presupposed that the jury had been properly directed, but that had not been done. The jury required first to be directed on identification in terms of the Lord Justice General's Practice Note of 1977. But, having given that direction, the trial judge required to follow it through by directing the jury on the consequences of not being satisfied with the quality of particular evidence (cf McAvoy v HM Advocate 1991 JC 16, LJ-C (Ross), delivering the Opinion of the Court, at p 24). The jury were, first, not told what circumstances would cause P's reliability to fall below the required line, such as where the jury considered that his testimony amounted only to a resemblance identification or if they thought that the appellant had been picked out at the parade only because of being the person in the photographs.

[22] The jury ought, secondly, to have been directed that they could not use potentially corroborative material to test the primary evidence of identification. Corroboration and testing reliability were two separate matters (Kearney v HM Advocate [2007] HCJAC 3, Lord Johnston, delivering the Opinion of the Court, at para [31]). Thirdly, the jury were not given adequate directions on the effect of P's prior inconsistent statements, notably in relation to picking out another person in the first set of photographs. P had either been lying or grossly mistaken or the police were lying about what he had said. If P had been told to pick out the person selected from the photographs, a reasonable jury could not have resolved the inconsistency between his and the police evidence in that regard.

(b) CROWN

[23] The appellant was not entitled to present an appeal alleging misdirections in the judge's charge in the absence of a ground of appeal on that issue. The ground of appeal presented under sub-section 106(3)(b) presupposed that proper directions had been given (see King v HM Advocate (supra)). If, in addition, it was said that misdirections had occurred, these required to be specified in the grounds of appeal in order for the trial judge to report upon them.

[24] The jury were entitled to look not only at P's evidence but also all the other evidence in deciding upon credibility and reliability (see Anderson v HM Advocate (supra)). The Crown were content to rely on the trial judge's summary of the evidence, which accurately reflected what the transcript disclosed. P had positively identified the appellant as the gunman. He knew the appellant. There was nothing out of the ordinary about the identification and the qualifications to it. P had been on the witness protection scheme and it was clear that he was anxious about his evidence. The trial judge had not considered that the jury could not rely upon his evidence.

[25] There were compelling circumstances pointing to the appellant's guilt. First, he had a motive for the murder, as he believed the deceased to have killed his father. Secondly, the house in which the deceased was killed had been targeted. Thirdly, there was P's identification. Fourthly, there was the description of the jacket worn by the gunman by other witnesses. The appellant accepted that this was his mother's jacket and it had been recovered from his house, even if he said it had been in the hall rather than, as the police maintained, his bedroom. Fifthly, there was male DNA on the jacket and firearms residue. It was hooded. Sixthly, there was the piece of paper found in the appellant's bedroom and hidden in a CD holder. It could be described as a "wish list or serious statement of intent", as the trial Advocate Depute had put it to the jury. All of this formed a body of evidence pointing to the appellant's guilt. There was no basis for the criticisms aimed at the judge's charge. The trial judge had given the jury proper directions. He had raised before the jury all the relevant considerations.

5. Decision

[26] Despite the persuasive nature of the appellant's submissions, the Court has little difficulty in concluding that the verdict reached by the jury was one which a reasonable jury, properly directed, could have returned. The evidence of P was certainly critical to a conviction. But the Court does not agree that the question to be asked is whether the hypothetical reasonable jury would be bound to hesitate or pause before accepting the evidence of that witness. In many cases, whether the evidence is of identification or otherwise, a jury may naturally hesitate before accepting it. That is part of their function. They should, in many instances, hesitate or pause before accepting or rejecting disputed incriminating evidence. They may wish to discuss a witness's demeanour, or to compare the testimony with known fact or to take time to discuss whether what it said accords with their knowledge of how things happen, applying their collective common sense. It is only once the jury have made their assessment of all the evidence that the issue of whether that evidence, when taken as a whole, satisfies them of the accused's guilt beyond reasonable doubt comes into the picture. It is only then that the customary directions on reasonable doubt, notably the reference, not uncommonly made, to hesitation or pausing, become significant.

[27] The question for the Court is whether, looking at the totality of the evidence, it is satisfied that a miscarriage of justice has occurred because no reasonable jury could have held the case proved beyond reasonable doubt. In answering that question, the evidence of P should not be looked at in isolation but should be taken along with, and in the context of, the other testimony at the trial (see generally AJE v HM Advocate (supra) LJ-C(Gill) at paras [28], [30] and [37]; King v HM Advocate (supra) LJ-G Rodger at 229-230). In dealing with appeals under sub-section 106(3)(b), the Court is not concerned with the legal sufficiency of the evidence. It requires to carry out an assessment of the reasonableness of the verdict "with the benefit of its collective knowledge and experience" (LJ-C (Gill) (supra)). As part of that assessment, it is no doubt correct in broad terms to say, as was submitted, that the evidence must reach a "base line" of quality.

[28] Certain aspects of P's testimony were not in dispute. First, he knew the appellant from school and around Pollock. Secondly, he had seen the crime committed and had a view of the murderer. Thirdly, after the event, he picked out the appellant from a series of photographs. Fourthly, he later also picked him out at an identification parade. But when it came to giving evidence, P initially said that he was not sure whether he could identify the gunman. That might well have appeared to the Advocate Depute to be a sign that the witness might be about to back-track on his apparent position at the conclusion of the police enquiry. What then occurred was an intense scrutiny of the witness's position. It is not clear exactly for how long this twenty year old was in the witness box, but the transcript of his examination-in-chief extends to some sixty six pages and his cross-examination to a further sixty two. During each of the stages of his giving evidence, the witness was closely questioned, sometimes, as appears from the printed word, in a relatively hostile manner and often by the putting of leading propositions. It is clear that the witness was under considerable pressure, not only from the experience of giving evidence over a prolonged period, but also from doing so in respect of a member of a family with power and influence in the vicinity of his former place of residence. It would not be at all surprising if the witness were to waver from his position from time to time, to appear to agree with counsel's leading propositions, and even to appear to contradict his earlier testimony. Of course, the adversarial system permits, and encourages, close scrutiny of a witness's position, but that does not carry with it the inevitable result that a jury will, or indeed should, scrutinise the testimony and conclude that the ebbs and flows, resulting from that adversarial scrutiny, necessarily imply unreliability.

[29] The jury in this case would have been anxious to reach a reasonable conclusion on what P's evidence amounted to. They would have been entitled to place little weight on P's assents to forcefully put leading questions, especially those involving dramatic suggestion or hyperbole. They were directed to approach the matter of identification with "particular care" and the trial judge reminded them of the many salient points which they might choose to take into account in their deliberations. In reaching their conclusions, they would no doubt bear in mind that identification, or rather recognition, of persons known to a witness may be a complex process. It may not involve simply a single particular facial feature but a great number of factors, including mannerisms, gait, size and style of clothing. For many witnesses, describing in words just what it was that prompted recognition may be a very difficult exercise, especially if it has to be performed immediately and under pressure of repeated, forceful questioning. Ultimately, the jury would have been entitled to look at the testimony of P, a young man aged only twenty, and extract, from what must have been several hours of question and answer, certain central pieces of testimony in addition to the matters which were not in dispute (supra).

[30] Despite the lines taken in cross-examination, and indeed at points in examination-in-chief, the jury would have been entitled to hold that P had had a good view of the incident, and in particular the gunman, from a distance of only 30 feet or so away. There is no suggestion that there was any problem with lighting or obstructions preventing recognition. P had been specifically looking out of the window, waiting for his taxi. He was observing what was going on in the street. Despite his initial position that he did not "really" get a good view of the gunman, the jury could reasonably have concluded that his view must have been a clear one. The witness had been in a position to observe the gunman approach the door, fire repeatedly through it and leave the scene. He had been able to see quite a bit of the detail of exactly what the gunman had done outside the door. His observations must have lasted a great deal longer than the "couple of seconds" assented to at one point under cross-examination, at least if "couple" is taken literally. He accepted elsewhere that his view had been "good" and had lasted a "couple of minutes" and the jury would have been entitled to conclude that these answers gave a more realistic picture of what had occurred.

[31] Although, at various points in his evidence, P seemed to fix upon the eyes of the gunman as the essential feature for recognition, he also had the opportunity to observe size, gait and action. The reference to a burka might be seen as a clever one for the cross-examiner to introduce; but the gunman was not wearing a burka. He had a jacket zipped up only to his nose and a skip cap covering his head. The hood of his jacket was certainly up for most of the time, but it was not disputed that the gunman removed the hood at one point as he approached the door. On any view, P's observation was not the equivalent of seeing a person wearing a burka. Eventually, as his evidence progressed, the witness was able to detail features, apart from the eyes and their half closed nature, that played a part in his recognition of the appellant, including shape of face, eyebrows, skin colour, complexion, age, height and weight. The fact that he was prepared to accept that his identification might have been mistaken does not detract from the overall effect of his testimony. Rejecting the possibility of error can only be seen as a denial of the obvious.

[32] There was no line taken with P that he had any grudge against the appellant or had any reason to be hostile towards him. Yet he picked him out from the photographs presented to him. He said that he had also picked out someone else, but that was disputed by the police. The jury would have been entitled to accept that P had picked out only one person whom he was identifying as at least likely to be the gunman. It is not known how good a resemblance of the appellant the photograph bore. It does not seem to have been used as a production. But P maintained that it had been at the identification parade that he had become "more than convinced" that the appellant had been the gunman. Once more, the jury would have been entitled to view such growing recognition as understandable, even if there were criticisms of it which might have been, and clearly were, forcefully made.

[33] As already indicated, the Court is unable to agree with the suggestion that the jury's scrutiny of P's testimony required to be done in isolation from their examination of the corroborative evidence. Of course, the search for corroboration in determining sufficiency of evidence is a different task from the assessment of credibility and reliability of a particular witness's testimony. But the necessary separation of the two exercises (Kearney v HM Advocate (supra), Lord Johnston at para [31]) does not mean that, in assessing credibility or reliability, a jury cannot use elements which they also find corroborative. On the contrary, the evidence which does corroborate the testimony of an eye witness, such as P, may play a very important part in the assessment. Thus, despite P's own views on the jacket, the identification by several witnesses of a jacket, which was found a fortnight or so later in the appellant's bedroom with firearm residue on it, as similar to that worn by the gunman is a matter which could bolster the reliability of the P's testimony as well as corroborate his identification of the appellant as the gunman. The facts that it transpired that the person, whom P said he recognised as the gunman: (a) admitted that he believed that the victim had killed his father; and (b) had a note "Kev McCluskey - shot" concealed in a DVD cover would also be capable of strengthening the prospect of P's identification being a reliable one. In short, this jury were entitled to accept that P had positively identified the appellant as the gunman and that his recognition of him was both credible and reliable. Seen in this light, their verdict appears to be an entirely rational one.

[34] The appellant's approach in submissions to the trial judge's directions, in its oblique criticisms of them, was an ingenious attack on the verdict. However, the correct approach, in an appeal taken solely under sub-section 106(3)(b), must be to assume, when assessing the reasonableness of the verdict, that the jury have been properly directed in terms of that sub-subsection. If, in addition to such an appeal, an appellant wishes to table criticisms of the charge, he must make these criticisms the subject of express grounds of appeal. For this reason alone, the appeal, in so far as based on the submissions alleging misdirection, must fail. However, in any event, the Court is satisfied that no misdirection occurred.

[35] The Lord Justice-General's Practice Note of 1977 cautions judges to give juries "such guidance and assistance" as can properly be afforded in relation to the task of assessing the quality and weight of evidence. Identification evidence is given as a specific example, but the point made is a general one. The import of the Note is not that a judge should tell a jury what to make of the evidence. That would be trespassing onto the jury's province. In a case such as this one, the trial judge correctly performs his duty if he draws the attention of the jury to apparently important matters, which they might wish to consider, when testing the reliability of P's identification of the appellant as the gunman. Thus, the trial judge mentioned that they might wish to take into account the nature and extent of the opportunity which P had to make a reliable identification (see McAvoy v HM Advocate (supra)). He drew their attention to the course of increasing recognition from photographs, to parade, to court. He reminded the jury that they might wish to consider whether what had occurred at one stage or another had influenced the witness's identification. But it would have been going too far if the trial judge had then dictated to the jury what they ought to do with P's testimony, were they to reach particular conclusions on the various matters to which he had drawn attention. Having directed their collective minds to these areas, it was a matter for the jury to decide what consequences followed. In this regard, the judge's directions cannot be criticised, especially where, as he concludes on the topic, he tells the jury that these are all commonsense matters, but that they should bear them in mind.

[36] The appeal must be refused.