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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Nimmo Smith

Lord Mackay of Drumadoon

[2011] HCJAC 84

Appeal No: XC861/06

OPINION OF THE COURT

delivered by LORD OSBORNE

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

at the request of

FRANCIS MARTIN THOMAS O'DONNELL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Burns, Q.C., Wilson; followed by Gilchrist, Q.C.; Paterson Bell, Edinburgh

Alt: Prentice, Q.C., A.D.; Crown Agent

18 August 2011

The background circumstances

[1] The appellant was convicted on 3 September 1999 at the High Court at Glasgow on charge (1) of the indictment which he faced along with Mary Ryan and Patrick Francis Devine. The terms of the charge upon which the appellant was convicted were as follows:

"...having formed a criminal purpose to murder Manus O'Donnell, 33 Inverewe Drive, Glasgow,

(1) between 19 and 22 November 1998, both dates inclusive, at a wooded area at Barbana Road, Phillipshill, East Kilbride or elsewhere to the Prosecutor unknown, you did assault said Manus O'Donnell, 33 Inverewe Drive, Glasgow and repeatedly discharge a shotgun at him and shoot him on the head and body, repeatedly strike him on the head and body with a knife or similar instrument and did murder him."

[2] The appellant was found not guilty on charges (2) and (3) of the indictment. Those charges, which were also libelled as having been committed after the appellant had formed a criminal purpose to murder Manus O'Donnell, were in the following terms:

"(2) having on 19 November 1998 hired motor car registered number R187 KGD you did on 19 November 1998 at the Tinto Firs Hotel, Kilmarnock Road, Glasgow, and elsewhere appropriate said motor car for your own use and steal same; and

(3) on 20 November 1998 at Broomburn Drive, Newton Mearns, Glasgow with intent to destroy evidence in respect of the murder libelled at charge (1) above and to avoid detection and the pains of prosecution for said murder, you did set fire to motor car registered number R187 KGD feloniously obtained as libelled at charge (2) above and you did thus attempt to defeat the ends of justice."

The appellant's co-accused, Mary Ryan, was found guilty on charges (1) to (3). The co-accused Patrick Francis Devine was found guilty only on charge (3). The appellant was sentenced to imprisonment for life on charge (1), with a recommendation in terms of Section 205(4) of the Criminal Procedure (Scotland) Act 1995, the "1995 Act", as it then stood, that he should serve a minimum period of 15 years. The appellant appealed against his conviction by way of a Note of Appeal. Leave to appeal was granted, but the appeal was later refused on 18 February 2004 by this court.

[3] Subsequently the appellant made an application for review of his conviction to the Scottish Criminal Cases Review Commission. Having considered all the material issues, the Commission decided to refer the appellant's case to this court in terms of Section 194B of the 1995 Act. Reference is made to the Statement of Reasons of the Commission under Section 194D(4), dated November 2006.

[4] The facts of the case are complicated. They were outlined by the trial judge in his report to this court in connection with the appellant's original appeal in this way. Mary Ryan had been a business associate of the now-deceased, Manus O'Donnell. She had worked with him in the building and civil engineering industries. It appeared that the deceased had been involved in the supply of labour only services at the lower ends of these industries. The conduct of the businesses was, according to the evidence, irregular in a number of ways, including the abuse of Inland Revenue sub-contractors' certificates, payment of wages in cash without deduction of tax, or accounting for National Insurance contributions, the employment of gangers without proper health and safety certification, and the use of shell companies to defeat the interests of creditors. Mary Ryan also became involved in 1998, along with the appellant, in the setting up and management of an escort agency under the name "Pretty Woman". During the months preceding November 1998, she was in frequent and regular contact with the now‑deceased. Meetings were held in hotels, bars and clubs in the Glasgow area, often in the evening, as well as at his business premises in Victoria Road, Glasgow, and at construction companies' offices elsewhere. In October 1998 she accompanied the now-deceased on a holiday to Spain, where there was talk of his taking part in the trade in controlled drugs. She had also accompanied him on a visit to Ireland. It was plain that Mary Ryan was a close confidante of the now-deceased, and that she was trusted by him. He was considered to be a private and careful man. He appears to have avoided direct contact with many of the businesses in which he had an interest.

[5] The appellant was, until the early summer of 1998, a ganger, working with a road gang in opening up roadways for the installation of cable television services, ultimately on behalf of Ashbourne Communications, a company with premises at Bandees Industrial Estate, near Stirling. There was no evidence that the now‑deceased had been involved in Ashbourne Communications, but he had been in the background of the road-opening operations. In about June 1998, the appellant had been given a suit, a car, and transferred to a minor management role, driving the now‑deceased, and involving himself with Cullen Construction, one of the firms apparently fronting for the now-deceased. He then became involved with the escort agency, "Pretty Woman", and introduced the "front" for that business, William McKinnon, to Mary Ryan. The appellant had frequent contact with the now‑deceased.

[6] In the afternoon of 19 November 1998, Mary Ryan had a meeting with the now-deceased at office premises at 67 Meadowpark Street, Glasgow at about 16.30 to 16.45 hours. For privacy, they left that office and carried out their discussions outside, in a Mercedes car, of registration number A6 MOD. They arranged to meet again at the Tinto Firs Hotel at 21.00 hours that evening.

[7] In the week beginning 16 November 1998, there had been a heavy volume of telephonic communications between Mary Ryan, Patrick Devine, the appellant, and other associates, notably Paul McGeoch, William McKinnon, and Mark Hamilton. Prior to the trial, these had been analysed from the billing records of the telephone companies involved. The trial judge observes that the evidence the jury heard about these telephonic communications clearly persuaded them that some at least of the individuals concerned had been engaged in forming a plan which had as its object the death of the now-deceased. On 19 November 1998, there were 28 calls between Mary Ryan's telephones and Paul McGeoch's telephones. Significantly, McGeoch's mobile telephone called Mary Ryan's for 101 seconds at 16.15 hours on that date. Immediately after Mary Ryan's meeting with the now-deceased, there were telephone calls from her mobile telephone to the appellant's mobile, for 376 seconds, at 16.45 hours, and to Patrick Devine's mobile for 126 seconds at 16.52 hours.

[8] At 17.30 hours on the same date, Mary Ryan, accompanied by Paul McGeoch, hired a Renault Megane car from Messrs. Arnold Clark. There followed more calls on various telephones. Mary Ryan's mobile telephone telephoned McGeoch's home for 18 seconds at 17.50 hours; and McGeoch's mobile for 42 seconds at 17.51 hours. There was heavy telephone traffic between then and 20.00 hours. Later, Paul McGeoch telephoned Mary Ryan's mobile telephone for 99 seconds at 20.40 hours. She telephoned the appellant on her mobile telephone for 602 seconds at 20.46 hours. Paul McGeoch telephoned Mary Ryan's mobile telephone for 19 seconds at 20.51 hours. Patrick Devine telephoned Mary Ryan's mobile telephone for 68 seconds at 20.52 hours. In the light of the convictions of Mary Ryan and the appellant, the trial judge considered that the jury must have concluded that the telephone traffic between the time of Mary Ryan's afternoon meeting with the now-deceased and their subsequent evening meeting at the Tinto Firs Hotel referred to hereafter dealt with the final stages in the planning of the murder.

[9] At about 21.00 hours on the same day Mary Ryan entered the Tinto Firs Hotel and met the now‑deceased, who had arrived there earlier. After a few minutes they left. There was a discussion whether his car or her hired Megane car should be used. She proposed that her car should be used, on the pretext that she needed fuel. The two of them then entered the Megane car, and Mary Ryan drove it on to Tinto Road and turned right across the front of the hotel, towards the junction with Kilmarnock Road.

[10] The now-deceased was killed sometime between then and 02.25 hours the following morning, when the Megane car was found on fire in a car park. The precise timing of the murder and the identities of those who inflicted the wounds did not appear from the evidence at the trial. The trial judge observes that the jury rejected Mary Ryan's self-exculpatory explanation of events that involved the invasion of the car by two armed and masked men. From the evidence of Robert Graham, who telephoned Mary Ryan on her mobile telephone at 21.07 hours, and spoke to having heard voices and threats, a bang, which might have been the sound of a gun being discharged, and gurgling, the jury may have inferred that people did indeed enter the car, and that the murder was carried out at that time. However, the mechanics of the killing, which involved the now-deceased sustaining two shotgun wounds, may have left doubt about the precise timing of his death.

[11] Elaborate stories were concocted to conceal what had happened, which were reflected in general in the statements given by various individuals when they provided statements to the police. The trial judge states that the jury must have inferred from the evidence, because of the conviction of Mary Ryan on all three charges, that the Megane car had been hired in order to provide a setting for the murder and for the later destruction of evidence. The Megane car had been set on fire using petrol as an accelerant. On the other hand, the jury were not persuaded by the Crown case against the appellant, in respect of the second and third charges.

[12] There was evidence which the jury must have accepted that, after the murder, the appellant had been in charge of the disposal of the weapons. He told one Stewart Richford that he had disposed of a shotgun and handgun. In Bandees Industrial Estate, near Ashbourne Communications' premises, Richford saw the appellant take a kitchen knife, which could have inflicted the wound found on the now‑deceased's neck, from a pick-up truck on hire to Ashbourne Communications. He saw the appellant dispose of the knife, which was subsequently recovered by the police. The pick-up truck was almost certainly the one from which the tarpaulin in which the now-deceased's body had been wrapped had come. William McKinnon spoke of the appellant having broken up another knife and disposed of it in the Clyde, and having in his possession two differently coloured empty shotgun cartridge cases. It should be noted that the shotgun wounds observed on the body of the deceased had been inflicted by two different cartridge types. The shot in the two wounds was of different sizes and the wadding was different. In addition, there was evidence that the appellant had confessed to William McKinnon that he had been involved in the killing.

[13] It should be explained that the appellant had tabled an alibi which, if believed, put him in Dublin at the time when the now-deceased was killed. When the Advocate depute came to address the jury the Crown did not dispute that the appellant had been physically absent from the United Kingdom at the time of the death of the now-deceased. That reflected the terms of a joint minute of agreement entered into during the trial to the effect that the appellant had been in the Republic of Ireland at the time the murder was committed. As the trial judge observed, the jury would not have been entitled to conclude that the appellant had personally inflicted any of the injuries sustained by the now-deceased, on the approach adopted by the Advocate depute at the trial. However, he states that there was ample evidence, including his part in the telephone traffic, of his participation in the conspiracy to murder.

[14] As regards the murder itself, the trial judge narrates that the weapons used in the attack must have included at least one shotgun and two knives. From the evidence of Dr Marjorie Black, a pathologist, it was apparent that the now-deceased had been shot once in the chest. The shotgun pellets entered the middle of the chest, through the tie and the adjacent shirt, carrying a shirt button into the chest, and tracking to the right across the body. The now-deceased must have been in an upright position at that point, with his clothing properly arrayed and his body turned towards the assassin at a distance of two to three feet from the gun. The now-deceased could have survived that wound. From the evidence of Robert Graham of the gurgling noises that he had heard on the telephone, there must have been some gap in time between that shot and the next one. The now-deceased was then shot in the back of the head at very close range. The track of that wound was at right angles to the head vertically and slightly to the right in the horizontal axis. The brain was destroyed and there was gross damage to the bone structure of the face and skull. The now-deceased died instantly at that point. He could not have survived that wound. Thereafter the upper clothing of the now-deceased was disturbed at some point. His coat, jacket and shirt were pulled up over his head, as they would have been had they been used to move his body. Through the clothing he was stabbed in the back, neck and head twenty two times with considerable force. The weapon used penetrated flesh and bone on occasion. As a further indignity, the now-deceased's throat was cut. Following the execution of the now-deceased, his body was taken and dumped in woods near Thorntonhall, wrapped in a tarpaulin which the jury had to have held had to have been supplied by Patrick Devine, given his conviction on charge (3).

[15] Central to the Crown case against the appellant was the evidence of William McKinnon. He had known the appellant over a period of years. Through him he had become involved in the "Pretty Woman" business. He had also been acquainted with the now-deceased. He had had contact with the appellant in the week of the murder. The appellant had told him at some point that he was "going across the water", that is to the Republic of Ireland. He had telephoned him at a time when he thought that the appellant was in Ireland. There had been a telephone call between these two persons on Friday 20 November 1998, during the course of which the witness had mentioned that Mary Ryan had been asking after the now-deceased. The appellant had said to him: "Don't worry about him, he'll no be back". On Saturday 21 November 1998, the appellant had telephoned William McKinnon at home between 09.00 and 10.00 hours. It was arranged that the appellant would take him to the premises of Sovereign Cars. When the appellant had picked him up, he had appeared distant to William McKinnon. At Sovereign Cars, the appellant had brought his Peugeot car into the yard. From the hatch-back he produced a lock-back knife and the two shotgun cartridges. The cartridges appeared to be empty and of different colours. The knife was broken up and subsequently thrown into the River Clyde. William McKinnon asked what was going on. All that the appellant was prepared to say at that time was "I cannae, I cannae". On the following Monday evening William McKinnon heard from a Ms Bain that the body of the now-deceased had been found. He had then spoken to the appellant on the telephone. The appellant had told him "Keep the heid doon. The shit's going to hit the fan". Towards the end of the week, the appellant had told him to expect a visit from the police. They came. Two or three weeks later, the appellant had asked William McKinnon if he would like to go to Blackpool. He and the appellant went there for the first weekend in December. After a night out, the pair returned to their lodgings. The appellant had got "pretty drunk". William McKinnon had brought up the subject of the murder. The appellant started to talk about the now-deceased being shot. William McKinnon gave evidence about the subsequent conversation. During its course, he said that the appellant had said "I done it. I done it wi they two other bams". He went on to give details of the killing. The now-deceased was "a mushed up bastard". He had been shot across the chest. The now-deceased had been "done in the head as well". The trial judge observes that the picture he gained from this evidence was of a rambling account, but one in which several important features of the actual murder were reflected.

[16] The trial judge goes on to explain that there was abundant evidence linking the appellant and the other accused over the period before and after the murder. The issue for the jury, he states, would have been how to characterise the association. The evidence of William McKinnon would necessarily have been given emphasis in that context. In addition, there was the evidence of Richford. It was significant in itself, but also had significance in that it showed the appellant engaged in the same exercise of disposal of possible murder weapons as had been spoken to by McKinnon. The critical issues were of the credibility of these sources of evidence. If believed, the evidence supported the conviction of the appellant on the charge of murder.

[17] In the appellant's original appeal, in the Opinion of the Court delivered by the Lord Justice Clerk, issued on 18 February 2004, in paragraph [34] it was said that there were two issues in the appeal: first, whether there was a misdirection by the trial judge in respect of either (a) his failure to direct the jury expressly, in connection with the Blackpool confession, that they could not convict the appellant on the basis that he actually took part in the killing, or (b) the direction given regarding the destruction of evidence, or both; and, second, whether, if there was a misdirection in either respect, it was such as to cause a miscarriage of justice.

[18] In paragraph [35] of the Opinion of the Court, in relation to the issue of misdirection, the Lord Justice Clerk said this:

"In our opinion, the technically correct course for the trial judge was to give the jury a specific direction that it was not open to them, if they believed the evidence about the Blackpool confession, to interpret it in the first of the two senses to which we have referred. The Advocate depute's acceptance that the appellant was in Ireland at the material time, when taken together with her unexplained reference to the Blackpool confession, required the trial judge to direct the jury that that confession was available to them only in support of the conclusion that the appellant was involved art and part. In our opinion, the failure of the trial judge to deal specifically with the point was a misdirection in the unusual circumstances of the case."

In paragraph [36] he went on:

"We are further of the opinion that the trial judge's direction on the question of destruction of evidence was inaccurate. While it is true that the destruction of real evidence does not by itself imply liability for the murder, the evidence of the appellant's disposal of the knives and his admission that he disposed of the pistol and the shotgun was plainly relevant to the circumstantial case against him on an art and part basis. The observation of the trial judge that the destruction of evidence was a separate crime may have been apposite in the case of Devine; but in the case of the appellant, the more appropriate comment would have been that, in the context of the whole evidence against the appellant, the disposal of the weapons was relevant evidence of his antecedent involvement in the murder. On that view, we consider that there was technically a misdirection on the point."

[19] On the issue of miscarriage of justice, in paragraphs [37] to [40], the Lord Justice Clerk continued:

"[37] We have carefully considered what, if any, were the prejudicial effects of these misdirections. The starting point for our consideration is that even on the restricted basis on which the Advocate depute sought a conviction, there was ample evidence to entitle the jury to convict. Even if the jury had disregarded the evidence of the disposal of the weapon, as they were in effect directed to do, there remained, for example, the highly incriminating evidence of his possession of the two types of shotgun cartridge. In our opinion, this misdirection did not result in any prejudice to the appellant. On the contrary, it was favourable to his position.

[38] The trial judge's failure to expressly direct the jury as to the significance of the Blackpool confession was not, in our view, of any materiality in the unusual circumstances of this case. By that point in the trial, the jury had heard the speeches for the Crown and for the appellant both of which were presented on the same basis, namely that the appellant was in Ireland at the material time and that the only case that the appellant had to meet was a case of involvement art and part. In consequence of those speeches, the question of his having taken part in the killing was no longer an issue.

[39] Reading the charge in its context as an appeal court ought to do, we consider that it would be unreasonable to imagine that the failure of the trial judge to give the direction contended for could have caused the jury to convict on the basis that the appellant took part in the killing (cp. Gemmill v Her Majesty's Advocate 1980 J.C. 16).

[40] In scrutinising the charge given in this complex and difficult trial, we should not overlook the compelling circumstantial case against the appellant. We conclude therefore that there was no miscarriage of justice."

For these reasons, the court therefore refused that appeal.

[20] Turning now to the Statement of Reasons which the Commission has furnished in connection with the making of the referral in terms of Section 194B of the 1995 Act, the Commission notes that, in the application for the referral, the appellant had raised a number of grounds which he considered justified his case being referred to the High Court. These grounds are set out in paragraphs 51 to 78 of the Statement of Reasons. For present purposes, it is appropriate to note only particular parts of the Commission's reasoning. In this connection we refer to paragraphs 66 to 68 of their Statement of Reasons. These were in the following terms:

"66. The Commission had considered these matters together. It notes that it appears that the terms of the confession spoken to by the witness McKinnon were not consistent with the defence position, as accepted by the Crown, that the applicant had been in Ireland at the time the murder took place. It accepts nonetheless that it was, perhaps, open to the jury to accept some parts of the witness McKinnon's evidence in this regard, but reject his evidence as to his belief that the applicant was confessing to have been present at the killing. However, the Crown speech did not expressly make this clear to the jury, and the defence speech suggested that, while this approach was possible, the confession, when considered 'in the round', suggested that the applicant had been present at the murder. Such an approach to the confession evidence would not have been and [sic] straightforward, and would have involved careful consideration of the evidence presented by both the Crown and the defence. The trial judge's charge, at pages 68 and 69, did suggest that the jury could accept or reject parts of statements given by an accused, but this direction was given in general terms, and no reference was made to the terms of the confession. The Commission therefore considers that, as in the case of McIntyre referred to above [McIntyre v Her Majesty's Advocate 1981 S.C.C.R. 117], there may have been a failure by the trial judge to direct the jury on the importance of construing the evidence of the applicant's confession as the Crown contended it should be construed. The Commission accepts that, in that case, the evidence of the appellant's confession was crucial to the Crown case, whereas in the present case there were a number of other circumstances implicating the applicant. However, it considers that the evidence of the confession was the strongest or most important evidence against the applicant. Moreover, many of the other circumstances relied upon by the Crown, such as the disposal of a knife and the possession of cartridges, were spoken to in evidence by the witness McKinnon. Any misdirection in relation to this witness's evidence could therefore, in the Commission's view, be considered to be material.

67. In these circumstances, the Commission considers that when looked at objectively, there may have been some confusion in the minds of jury members as to the correct approach to adopt when considering the evidence of that confession. Moreover, the evidence has to be considered against the background of the witness McKinnon having been initially indicted for the murder of which the applicant was convicted, and his character having been attacked by counsel for the applicant on the basis that he had an interest in implicating the applicant. This was not addressed in the trial judge's charge to the jury.

68. When these matters are considered together, the Commission considers that there were a number of important matters which the jury ought to have taken into account when considering what was, arguably, the strongest piece of evidence in the case against the applicant, but about which no clear direction was given. The Commission accepts that there were other circumstantial pieces of evidence against the applicant. Nevertheless, it considers that the failure by the trial judge to give clear directions on these matters may have resulted in the jury not being properly advised on matters of material importance to the applicant's defence, before it retired to consider its verdict. Moreover, one of these matters, the failure by the trial judge to give a direction in terms of the advice given in the case of Docherty [Docherty v Her Majesty's Advocate 1987 S.C.C.R. 418], does not appear to have been previously considered by the High Court in its appellate capacity. In these circumstances, the Commission considers that there has been a misdirection which may have resulted in a miscarriage of justice."

[21] The Commission then went on to consider certain issues relating to disclosure of Crown witness statements and allegedly defective representation. This part of the Commission's consideration was prompted by the appellant's questioning whether his defence representatives had been provided with all of the police statements of the witness William McKinnon. However, in paragraph 76 of the Statement of Reasons, the Commission concluded that the investigations had shown that it was not the case that the Crown had failed to disclose all relevant statements and that it could not be suggested that there might have been a miscarriage of justice on that basis. In paragraphs 77 to 78, the Commission went on to examine the appellant's contention that he had suffered a miscarriage of justice on account of defective representation in terms of Anderson v Her Majesty's Advocate 1996 J.C. 29; 1996 S.C.C.R. 114. Their conclusion was that they did not consider that the actions of the applicant's counsel met the test set forth in that case. Accordingly, in paragraphs 79 of the Statement of Reasons, the Commission gave their reasons for referral in the following terms:

"79. The Commission considers that there has been a misdirection in the trial judge's charge to the jury in the applicant's case, in that he failed to give adequate directions as to the approach which the jury should take when considering the evidence of the confession which the applicant was alleged to have made to the witness McKinnon. It also considers it arguable that direction should have been given regarding the approach to be taken to the witness McKinnon's evidence generally, given that he himself had previously appeared on the indictment, and that the applicant's counsel had suggested that he was, for this reason, motivated to incriminate the applicant. This latter matter was not considered at the applicant's appeal. It considers that these misdirections may have resulted in a miscarriage of justice."

The Grounds of Appeal tabled in the referral
[22] Following upon the making of the referral to this court, the appellant, at different dates, has lodged several documents containing grounds of appeal. Some have been insisted in, some have not. We refer only to those containing grounds that have been argued. The first of these, dated 5 March 2007, 1B of the appeal court process, contains two grounds. These may be briefly summarised in this way. The first ground is to the effect that the trial judge failed to give to the jury proper directions in respect of the basis upon which they could convict the appellant of murder. In particular, it is alleged that he failed to give adequate directions in relation to the evidence of William McKinnon relating to the Blackpool confession. It narrates that a joint minute had been entered into between the Crown and those representing the appellant, to the effect that the appellant had been in the Republic of Ireland at the time when the murder was committed. That position had also been reflected in terms of the Advocate depute's speech to the jury. In these circumstances, it is contended that the only basis upon which a conviction could be sought was by virtue of concert. It is alleged that the trial judge's charge to the jury did not contain a direction that the Blackpool confession could be used only as evidence of the appellant's being involved in the crime on an art and part basis. In this ground it is noted that this court previously held that this failure did amount to a misdirection in law.

[23] The second ground of appeal in document 1B is to the effect that the trial judge failed to give adequate directions to the jury regarding the approach that they should adopt in assessing McKinnon's evidence generally. It is noted that this point had not previously been raised before this court in the earlier appeal. In essence, the suggestion is that the trial judge ought to have reminded the jury of the criticisms advanced at the trial on behalf of the appellant in assessing the credibility of McKinnon's evidence. Particular importance is attached to the fact that, since McKinnon had previously been indicted for the murder of the now-deceased, his character had been attacked by counsel for the appellant upon the basis that he had an interest in implicating the appellant in the crime.

[24] The second document containing grounds of appeal was lodged on 30 January 2008, 1D of the appeal court process. It contains several grounds, some of which have not been supported by counsel for the appellant. Paragraphs 3 to 6 of this document contain grounds which have been supported. These can be briefly summarised in this way. It is said that, at a procedural hearing on 11 July 2007 in the present proceedings, the Crown disclosed two additional statements from the Crown witness William McKinnon, which had not been disclosed to the defence at the trial, or during the course of the original appeal. These statements were not available for consideration by the Commission during their investigations. It is claimed that these statements contained information which was essential to the proper preparation and presentation of the defence case. The lack of them is said to have resulted in inability to cross‑examine the witness William McKinnon fully. It is said that a statement dated 26 July 1999 contained details of the alleged confession by the appellant to William McKinnon at Blackpool, which differed in material respects from those that he had given in previous police statements and in his evidence. Now it is contended that the disclosure of this particular statement would have provided the defence with significant additional material with which to undermine the evidence of William McKinnon and would have further emphasised the inherent problem in the Crown case of the appellant's admitted presence in Dublin at the time of the killing. It is contended that it would also have strengthened the defence proposition that William McKinnon had engaged in a process of embellishing his evidence over time.

[25] The third document containing grounds of appeal is dated 2 July 2009 and is 1E of the appeal court process. It contains nine paragraphs, the material parts of which may be summarised in this way. It is said that, approximately two weeks in advance of the hearing of this case before this court on 9 June 2009, the Crown disclosed inter alia a statement from one Christina Lawson, who was Crown witness No.43 on the indictment. This statement had not been disclosed to the defence at the trial, or during the course of the first appeal, nor had it been disclosed to the Commission during the course of their investigations. In the statement, the terms of which are more fully quoted at paragraph [74] below, Christina Lawson, who, at the time referred to in it, was the girlfriend of William McKinnon, said to the police:

"About a month ago I remember seeing something in the papers about a murder inquiry. Willie Kinnon [sic. William McKinnon] phoned me up and asked me if I had seen the papers about the murder and I asked why. He told me that he wasn't involved but that he was part of the cover-up. When I asked him what he meant he said that he hadn't murdered him but that he had helped to get rid of the body. I didn't ask him any more because Willie is always telling me stories to make out that he was a gangster. He phoned me from Blackpool and said that he wanted to get away from things. He had too much pressure from the police and people. He was in Blackpool with his friend Frank [the appellant]."

The witness Christina Lawson had been precognosced by the defence, but at no time had she disclosed the telephone call referred to with William McKinnon. The statement by Christina Lawson had not been lodged as a production at the trial, at which ultimately she was not called as a witness by either the Crown or the defence. It is contended in this ground of appeal that this statement contained information which was essential to the proper preparation and presentation of the defence case. The Crown's failure to disclose the material in advance of the trial meant that the defence had been unable properly to prepare and conduct the appellant's defence. In particular, they had been unable to cross-examine Crown witness William McKinnon as to the contents of the statement. The Crown's duty had been to disclose the information in advance of the trial. By withholding this statement it is contended that the defence were denied information which, in all likelihood, would have resulted in a special defence of incrimination being lodged against William McKinnon, if not for the charge of murder then perhaps for the charge of attempting to defeat the ends of justice. Further, it is claimed that the information concerned would have provided the defence with significant additional material with which to cross-examine William McKinnon and to undermine his credibility as a witness. He was a crucial witness for the Crown and if the jury were not satisfied that he was credible, then there would have been insufficient evidence to convict the appellant. The content of the statement by Christina Lawson was wholly inconsistent with the evidence given by William McKinnon and his position taken up in numerous statements to the police. At no time had he stated to the police, or in evidence, that he had been involved in moving the body of the now deceased. It is also contended that the timing of the conversation between William McKinnon and Christina Lawson was of significance. It was when William McKinnon had been in Blackpool with the appellant that he claimed that the appellant had admitted to him that he had been involved in the death of the deceased. It is argued that if the statement of Christina Lawson had been available to the defence it would have provided material with which to undermine that alleged confession. That confession, however interpreted by the jury, was the single most significant piece of evidence against the appellant. It is also contended that the defence were denied information which would have provided an alternative explanation as to the element of special knowledge attributed by the Crown to the Blackpool confession. The Crown had argued at the trial that the appellant must have been involved in the murder of the deceased in order to have confessed to specific details that only someone intimately involved in the murder would have known. If William McKinnon had been involved in the disposal of the deceased's body, it followed that he would also be familiar with the injuries sustained. It is contended further that this ground of appeal has an impact on the first ground of appeal in document 1B. It is said that, in the light of the content of Christina Lawson's statement and the contents of the averments in this ground of appeal, there was no compelling Crown case against the appellant. If the court were to hold that the trial judge had misdirected the jury, then that had led to a miscarriage of justice.

[26] The fourth document containing grounds of appeal, lodged on 22 September 2010, is 1G of the appeal court process. The contents of this document are related to the contents of document 1E. It is said that, subsequent to the lodging of document 1E on 25 November 2009, the Crown lodged certain pages from what was Crown Production 72 at the trial, the transcript of a tape recording of an interview between police officers and a suspect, namely William McKinnon, on 24 March 1999. In that interview it is said that police officers make reference to a statement taken from Christina Lawson by police officers and also a statement taken from her by a procurator fiscal. The police officer questioning William McKinnon used those statements as a basis for questioning him. From the police questioning it would appear that Christina Lawson had given statements to the effect that William McKinnon had telephoned her from Blackpool and told her inter alia that he had been involved in the disposal of the body of the deceased. Therefore, although the statements of Christina Lawson were not disclosed to the defence prior to the trial, there was at least some information which could have been gleaned from the interview that would have informed the defence of the position of this potential witness. Although not relieving the Crown of the burden of disclosure, that could have prompted the defence to request copies of the statements referred to and to consider acting on them. It is averred that senior counsel who conducted the trial has taken the view that, based on the information that they had at the time, the defence should have led evidence from Christina Lawson. It is said therefore that this particular ground of appeal is a corollary of ground of appeal 1E. On the assumption that the court were to find that the Crown had failed in its duty of disclosure in relation to the statement of Christina Lawson, but that the defence had had knowledge of the contents of that statement, it might be that a ground of appeal based on the failure to disclose would fail. However, in such circumstances, it is contended that the failure to obtain further information from the Crown about statements of Christina Lawson and to lead evidence from her, in order to attack the evidence of William McKinnon, constituted defective representation on the part of those representing the appellant at the time of the trial. It is contended that the ultimate question for the court to decide when looking at grounds of appeal 1E and 1G is whether the appellant, in the absence of the disclosure, or in the absence of the defence acting on the oblique disclosure constituted by the contents of Crown Production 72, had a fair trial.

Response by former senior counsel for the appellant to ground of appeal 1G
[27] Following upon the reception of ground of appeal 1G as part of the grounds of appeal, the former senior counsel who acted for the appellant at the time of the trial was invited to submit a response to that ground. He did so. His response is No.18 of the appeal court process and is dated 11 January 2011. In his response he affirmed that William McKinnon had been an important witness for the Crown at the trial, who spoke to the evidence of a confession by the appellant at Blackpool shortly after the murder. He also spoke to the appellant breaking up a knife and throwing it into the River Clyde. His response then continues in this way:

"The police interview of William McKinnon of 24 March 1999 Crown Production 72 included quotations from the police statement of Christina Lawson referred to in ground of appeal 1E. I must have read that police interview since I considered all such material, given the importance of his evidence. I recall that the nature of the cross-examination was the subject of much discussion with junior counsel. However I am now unable to recall what consideration I gave to the passages which referred to or quoted from the police statement of Christina Lawson. I have contacted counsel who acted as my junior but she has no recollection of this matter either.

Accordingly, I am not in a position to tell the court why no application was made to the Crown for the police statement of Christina Lawson. It may be that the potential significance of the statement was not appreciated at the time because of the 'oblique' way in which the statement was revealed to the defence. I am aware that Christina Lawson was precognosced by the defence and made no reference to the conversations with McKinnon about which she told the police.

It is also possible that I decided that we should not proceed down this line of enquiry having regard to Ms Lawson's history (I think that she had problems with drug dependency) and in the light of her comments to the police that McKinnon was always telling her 'stories'. It is possible, too, that there was anxiety that, if pressed about this matter in cross-examination, McKinnon would have claimed that the appellant was involved in the 'cover-up' and the hiding of the body.

Giving the best consideration I can to this matter eleven years after the trial (and with the benefit of hindsight), I doubt that a decision was taken not to pursue this area of investigation. Cross-examination proceeded on the basis that McKinnon was a fantasist and had invented the contents of the 'Blackpool confession'. The information in Christina Lawson's statement would have provided me with some formidable additional material with which to cross-examine McKinnon."

The Submissions of the appellant
[28] Senior counsel for the appellant, having outlined the history of the case, already set forth, drew attention to the grounds of appeal stated in the document dated 5 March 2007, 1B of the appeal court process, tabled following the referral. There were essentially two grounds expressed: first, misdirection relating to the confession evidence; and second, misdirection more generally in relation to the evidence of William McKinnon. It was important to understand that the appellant had advanced a special defence of alibi at the trial, it being said that he had been present in the Republic of Ireland at the time when the murder was committed. There was a joint minute of admissions to that effect and the Advocate depute at the trial had accepted that position in her speech, as appeared from the transcript of proceedings on 31 August 1999 page 21E to F and pages 62C to 64A. The Crown had never explained with precision the rôle which the appellant was said to have played in the murder. It had simply been contended that he had been involved. There was no suggestion that he had instigated or planned the crime. The Crown had relied upon the contents of the so-called Blackpool confession. Senior counsel agreed that a person who had been involved in the planning, but not the actual execution of the murder, might use language such as that said to have been uttered by the appellant in the Blackpool confession, but argued that that view depended upon the interpretation of the words used in the confession, an issue of some subtlety. If it were the position that the Crown sought to persuade the jury to take that view of the confession, that matter should have been addressed in the trial judge's charge. He should have indicated to the jury what was and what was not relevant to the Crown case, based upon art and part involvement.

[29] Senior counsel went on to draw attention to the transcript of the evidence of William McKinnon. In particular he referred to the passage commencing at page 134 of the transcript of evidence relating to the 26 August 1999 and the following pages. The passage at page 139, line 19 to page 140 could be characterised as evidence of a confession by a person who had been physically present at the murder in question. Senior counsel also drew attention to the transcript of his own speech to the jury on 1 September 1999 particularly at page 113 and following.

[30] Senior counsel submitted that the trial judge had misdirected the jury by failing to direct them regarding the basis on which they could convict the appellant of the murder, having regard to the fact that it was accepted that he had been in Ireland at the material time. Secondly, in the light of that agreed position, the jury should have been given directions relating to the construction that they ought to put on the evidence relied upon by the Crown relating to the confession. Thirdly, as regards the confession, the jury ought to have been directed that they could not construe it as an admission by the appellant that he had been an actor; accordingly it was therefore necessary that they should have been told that they required to ignore part of the material concerned. While it was accepted that some parts of the confession could properly be seen as relevant to a case based on concert, other parts could not. On any view of the matter specific directions were necessary. That was particularly so because of the significance that William McKinnon's evidence had assumed in the Crown case. In the report by the trial judge in the original appeal, dated 27 March 2000, he had given an explanation for his silence in this regard at page 8. That explanation was that the trial judge had considered it impossible to present this evidence to the jury for a second time without strengthening any impression that they might have had that there was doubt about the appellant's alibi, whatever the Crown's position on it. However, senior counsel submitted that that explanation would not do.

[31] Senior counsel went on to examine the terms of the charge to the jury in detail. The only reference to the Blackpool confession was to be found at page 66 of the transcript of it. That treatment was wholly inadequate in the circumstances; the jury had been given no guidance regarding how they should approach the statement spoken to by William McKinnon, which was, in part, inconsistent with the Crown case. At no stage did the trial judge focus on the Crown case against the appellant being one of guilt by concert only. The jury should have been told that without concert having been established there could be no conviction and, as regards the appellant, unless there had been antecedent concert, there could be no conviction.

[32] Senior counsel moved on to deal with the second ground of appeal in the Statement of Grounds, dated 5 March 2007, 1B of the appeal court process. As regards that, it was important to understand the factual background. A trial had been started in June 1999, when the presiding judge had fallen ill. That had resulted in the desertion of the diet pro loco et tempore. In that trial, on the indictment then extant, William McKinnon had been an accused person. He had incriminated the appellant. He had then been told, following the desertion of the trial, that the case against him was to be dropped and that he would be a witness in the subsequent trial, which took place in August and September 1999. Against that background, it was submitted that it had been the duty of the trial judge to charge the jury relating to, first, the fact that the status of William McKinnon had changed from being an accused person to a witness, and, second, relating to prior statements inconsistent with his evidence; in that connection there had been several significant changes in his position over time. In connection with these submissions, senior counsel relied upon Docherty v Her Majesty's Advocate 1987 J.C. 81; 1987 S.C.C.R. 418, particularly the last two paragraphs of the Opinion of the Court. The directions given at page 63C to E of the transcript of the charge in relation to prior inconsistent statements by William McKinnon were not enough. There should have been directions relating to his change of status.

[33] Senior counsel then turned to deal with the grounds of appeal contained in the document, dated 30 January 2008, 1D of the appeal court process. The essence of the new grounds of appeal was contained in paragraphs 4 and 5 of that document. The statements to which they referred were dated 7 and 26 July 1999. The first of these was dated on the day of release from custody of William McKinnon. The second contained details of the alleged Blackpool confession by the appellant to William McKinnon. At page 14 of the latter document McKinnon stated that the appellant had said "I shot him". However, in evidence at the trial he had been much more equivocal as regards responsibility for the shooting. There were other elements in the recently disclosed statements which differed from evidence given by William McKinnon. These matters were material to the credibility of that witness. The cross-examination of William McKinnon would have been strengthened by this further ammunition, if it had been available at the time of the trial.

[34] In connection with these submissions senior counsel relied upon McInnes v Her Majesty's Advocate [2010] U.K.S.C. 7; 2010 S.C.C.R. 286, particularly the observations of Lord Hope of Craighead in paragraphs [19] and [20]. The test to be applied, it now appeared, was whether, if disclosure of the material in question had been made, "taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict." Senior counsel also relied on the observations of Lord Brown in paragraphs [35] and [38] of his judgment, to a similar effect.

[35] Senior counsel said that the new material that had been disclosed did not impinge upon the earlier grounds of appeal argued, but did on the additional grounds in the document 1D, dated 30 January 2008. In connection with that document, it was not intended to support the point made in paragraph 7; paragraph 8 was surplusage. However, the non-disclosure of the material involved had rendered the trial of the appellant unfair. There had therefore been a miscarriage of justice.

[36] At this point in his submissions senior counsel reverted to the original grounds of appeal referred to above. In that connection he relied upon Johnston and Woolard v Her Majesty's Advocate [2009] H.C.J.A.C 38. The appellants in that case had each been convicted on a charge of murder, but in different terms. The implication of the verdicts was that the jury had rejected the contention advanced by the Crown that the appellants had been acting in concert. A ground of appeal had been advanced concerning whether that verdict had been one which was open to the jury. Senior counsel relied on what was said in paragraphs [31], [35], [39] and [40]. In that case the jury had been entitled to convict upon the basis of individual responsibility, that not having been eschewed by the Advocate depute. That contrasted with the present case where, standing the position of the Crown regarding the appellant's whereabouts at the time of the offence, the jury were not entitled to convict the appellant as an actor. Unfortunately the trial judge gave no directions regarding that matter. The trial judge, at page 6 in his report to this court, had said that the jury were not entitled to convict the appellant as actor, because of the position of the Advocate depute. But that was inconsistent with the position as now understood in cases such as R v Coutts [2006] 1 W.L.R. 2154 and Ferguson v Her Majesty's Advocate 2009 S.C.C.R 78.

[37] Senior counsel next turned to consider the matters referred to in ground of appeal document 1E. The problem was to assess whether there was a real possibility that the jury would have arrived at a different verdict, if the material not disclosed prior to the trial had been timeously disclosed. In order to undertake that task it was necessary to look at the circumstances of the trial and the character of the material not disclosed. For that purpose he made reference to the report of the trial judge, No.4 of the original appeal court process. At pages 2 and 3 of that document it was indicated that the appellant had had a business relationship with the now deceased and Mary Ryan. There had been much evidence of telephone conversations between them and William McKinnon, during the week beginning 16 November 1998, as appeared from page 4 of the Report. There had been evidence from one Stewart Richford to the effect that the appellant had been in charge of the disposal of certain weapons including a shotgun and a knife, as appeared from page 5 of the Report. William McKinnon also gave evidence in relation to the disposal of a knife and the appellant's possession of two different shotgun cartridge cases, as appeared from page 6 of the Report. There had also been evidence of William McKinnon's statements and his evidence regarding the so-called Blackpool confession. Reference was made to page 8 of the Report. It was obvious from these circumstances that William McKinnon had been an extremely important witness, so far as the case against the appellant was concerned. At page 7 of the Report the trial judge described him as central to the Crown case against him. Without the evidence of William McKinnon, the Crown's case against the appellant would simply disappear.

[38] Senior counsel went on to refer to the transcript of the Advocate depute's speech to the jury between pages 44 and 62. The Crown had not sought to show how the appellant had been involved. The evidence of the Blackpool confession had been regarded as powerful; it could be seen as demonstrating special knowledge on the part of the appellant. It was to be supposed that the jury must have concluded that the appellant's special knowledge had been derived from those who had been actors in the matter and that he had been involved on an art and part basis. Looking at the evidence given by McKinnon, at pages 135 to 140 of the transcript of proceedings on 26 August 1999, it was evident that the witness's account of the appellant's remarks to him at Blackpool suggested personal involvement in the crime. It was difficult to construe what McKinnon had said as indicating a misunderstanding on his part, yet that was what had been suggested by the trial Advocate depute. In cross-examination, McKinnon's credibility as a witness had been vigorously challenged. That challenge was translated into the speech made on the appellant's behalf to the jury.

[39] Senior counsel then turned to consider the content of the statement of Christina Lawson, which was item 8 in the Crown bundle of documents. The important passage was to be found on page 2 of the typed version. Senior counsel submitted that, had that material been deployed at the trial, it would have significantly added to the defence, because it could have been used to address and provide answers to two questions. In particular, it gave a substantial explanation of McKinnon's motive in fabricating the police statement of 23 December. Also, it would have furnished an alternative source for the special knowledge elements attributed by McKinnon to the appellant. In Christina Lawson's statement there was an admission to her by McKinnon of involvement in the aftermath of the murder, in particular, the disposal of the body; that involvement would have enabled McKinnon to see the injuries sustained by the deceased. It was accepted that the trial judge had faced a difficulty regarding McKinnon's evidence, which he had explained on page 2 of his supplementary report. However, if Christina Lawson's statement had been available to the defence before the trial, it could have been used to support the suggestion to McKinnon that he had been fabricating evidence against the appellant, in order to escape involvement on his own part in a crime arising out of the disposal of the body of the deceased.

[40] Senior counsel went on to address the issue of the knowledge of the appellant's advisers at the time of the trial and after it, regarding the statement of Christina Lawson. It appeared that, after the trial, senior counsel then acting could not have realised that he had had a means of access to information regarding Christina Lawson's statement. In his response to ground of appeal 1G, dated 11 January 2011, pages 1 and 2, he stated that he must have read the police interview with William McKinnon of 24 March 1999, Crown Production 72 at the trial, which included quotations from the police statement. However, he was unable to recall what consideration he gave to the passages of the interview which referred to or quoted from the police statement of Christina Lawson. It was contended that senior counsel then acting must have missed the import of the information available to him.

[41] Senior counsel went on to draw our attention to certain authorities bearing on this part of his argument. The first of these was Affleck v HM Advocate 2010 S.C.C.R. 782, particularly paragraphs [20], [28], [31] and [40]. It had been held that actual knowledge of material not disclosed meant that a ground of appeal relating to non-disclosure would fail. Reliance was also placed on Gordon v HM Advocate 2010 S.C.C.R. 589, particularly paragraphs [82] to [85]. It showed that knowledge was not so much the issue, but what was done with it was important.

[42] In the circumstances of the present case it appeared that there had been no deliberate decision not to use the material from Christina Lawson's statement, which was important. That material could have provided a defence where it would not otherwise have been available. Accordingly the second part of the test in McInnes v HM Advocate could be met.

[43] Senior counsel moved on to deal with ground of appeal 1G. Upon the basis that information regarding Christina Lawson's statement had been available to counsel at the trial, there had been defective representation. The test for that was now to be found in Woodside v HM Advocate 2009 S.C.C.R. 350. The cross-examination of William McKinnon had been less effective than otherwise it might have been. The "complete failure" to present the appellant's defence had consisted in a failure to incriminate William McKinnon for murder. There could be defective representation which did not result from a deliberate decision.

[44] Senior counsel went on to rely on Burzala v HM Advocate [2007] HCJAC 67, particularly paragraphs [33] to [37] and [41]. What emerged was that there had to be a "proper" presentation of the defence case.

[45] Senior counsel accepted that one of the problems in the case was that the court did not know and could not ascertain why it was that counsel at the trial did not pursue the issue of the statement by Christina Lawson, referred to in William McKinnon's interview with the police. It may be that the matter of that statement was overlooked. The contention was that the appellant's defence had not been properly presented, or, at least, a material part of it had not been so presented to the jury. While it was contended that there had been an oversight, senior counsel conceded that that was not the only possible inference to be drawn from the circumstances. Having regard to Anderson v HM Advocate, particularly at pages 120, 121, 126, 128 and 129, it could be said that an oversight was not "effective" representation. Reliance was also placed on McBrearty v HM Advocate 2004 J.C. 122; 2004 S.C.C.R. 337, a failure to present an important line of defence constituted defective representation.

The Submissions for the Crown
[46] The Advocate depute submitted that there was nothing in the case to suggest that the jury had convicted the appellant as an actor. His acquittal on charges 2 and 3 confirmed that. Having regard to the manner of the presentation of the case to the jury, there could have been no doubt about what the jury were being asked to do. The case had been presented to them, so far as it was directed against the appellant, upon an art and part basis. There could be no doubt regarding that. The Advocate depute in the trial could have presented an alternative case with a different basis for conviction, but had not done so. In this connection the Advocate depute relied upon the terms of the Crown speech to the jury at the trial at page 62. The Crown's position that the appellant was in Ireland at the time when the now-deceased was killed was made completely plain. The taking up of that position closed off the possibility that the jury could convict on the basis that he had been an actor. In his charge to the jury the trial judge did not demur to that, so that that was the position presented to the jury.

[47] In view of the submissions made on behalf of the appellant, the question had to be asked as to what the trial judge ought to have said to the jury. The Crown's submission was that it would have been very difficult for him to say anything. The position taken up by the Advocate depute at the trial had been reinforced in the speech of senior counsel for the appellant. At page 101 of the transcript of his speech, he drew attention to what he contended the Crown had to prove, which was that, although it was accepted that the appellant was in Dublin at the time of the murder, he was nevertheless a party to it.

[48] In the present case, the trial judge had dealt with the principles of the law of concert at page 51 and following in the transcript of the charge. However, the Advocate depute accepted that there was no direction to the effect that the only basis upon which the jury could convict the appellant was by applying the law of concert. In the original appeal in this case, the court had held that the lack of such a direction was a misdirection, as appeared from paragraph 35 of the Opinion of the Court. However, it had gone on to hold that the possibility of the appellant being guilty as actor was simply not an issue in the case, in view of the positions taken up in the addresses to the jury. That was the reality of the trial and, having regard to it, the lack of the direction desiderated did not amount to a miscarriage of justice, under reference to Gemmill v Her Majesty's Advocate. That remained the position.

[49] Counsel for the appellant had contended that the jury had had two possible approaches to the conviction of the appellant before them. The first was as actor, with evidence of the Blackpool confession, associated with special knowledge, the evidence of telephone communications, the destruction of items associated with the murder, reported comments of the appellant demonstrating knowledge of the death prior to it having become a matter of public knowledge, for example, the observation "He'll no be back", made on 20 November 1998, before the body had been found. There was also said to have been behaviour on the part of the appellant, including the wiping of the blade of a knife associated with the remark "You didn't see that". All of that might be thought to have constituted a basis upon which the jury might have been entitled to convict as actor, had the Crown actually sought such a conviction. However, as already shown, the Advocate depute at the trial closed off that possibility. The second basis for conviction was plainly the art and part case, which was the case presented by the Crown to the jury and met by senior counsel for the defence. The live issue at the trial was whether that case had been proved by the Crown.

[50] The question remained, however, of what, if anything, should have been said in the charge relating to the Blackpool confession. In this connection the Advocate depute relied upon Hopkinson v Her Majesty's Advocate 2009 S.C.C.R 225, and, in particular, paragraph [24] of the Opinion of the Court. In Johnston and Woolard v Her Majesty's Advocate, in paragraph [39], the duties and privileges of a prosecutor had been considered. Despite what was said there, one came to the point that, in the present case, the Crown had accepted in a joint minute and in its speech to the jury that the appellant was in Ireland at the time of the murder.

[51] The Advocate depute recognised that, in the original appeal, the appeal court had identified a misdirection; however, they had rightly taken the view in paragraphs [39] and [40] of the Opinion of the Court that there had been a compelling circumstantial case against the appellant. That case, which the Advocate depute described in detail, provided ample material upon which the jury could convict the appellant upon the basis of art and part, which was the only basis put to them. In all these circumstances any insufficiency in the directions given by the trial judge did not amount to a miscarriage of justice.

[52] The Advocate depute then went on to deal with the second ground of appeal contained in the Note of Appeal dated 5 March 2005, 1B of the appeal process, the alleged insufficiency of the trial judge's directions in relation to the approach that the jury should take to the evidence of William McKinnon generally. It was submitted that there has been no obligation upon the trial judge to go beyond the directions which he actually gave. In this connection the Advocate depute relied upon Cook v Her Majesty's Advocate 2006 S.C.C.R. 687. That case dealt with a situation in which a co-accused person had pled guilty and thereafter given evidence for the Crown against his co-accused. There had emerged a discrepancy between the evidence given and the plea accepted. The presiding sheriff had made no reference to this discrepancy in his charge to the jury. The court had held that whenever a co‑accused tendered a plea and then gave evidence for the Crown in the same matter, it did not follow that some direction or advice from the trial judge to the jury, effectively amounting to a cum nota warning, was required; the proper course might be simply to leave the matter to the jury to evaluate the evidence which they had heard. What had happened in the trial in the present case was that William McKinnon had been cross-examined over a considerable period of time very effectively. All of the relevant circumstances relating to the credibility of his evidence had been raised at that time. In all the circumstances it was submitted that there was no call for the trial judge to give specific directions concerning the position of that witness.

[53] The Advocate depute finally outlined his position in relation to the matters raised in the document dated 30 January 2008, 1D of the appeal process. Essentially the point being made was that, if the material subsequently disclosed had been available at the trial, there would have been more extensive questioning of William McKinnon. The Advocate depute submitted that the proper approach to these matters was to be found in the decision of this court in McInnes v Her Majesty's Advocate 2009 J.C. 6; 2008 S.C.C.R. 869, in paragraph [4] of the decision, and also in the decision of the Supreme Court in that case, reported in 2010 S.C.C.R. 286, particularly in the opinion of Lord Hope of Craighead at paragraph [20]. The critical issue was whether the principle of equality of arms had been breached. It would have been breached if access to the statement or statements in question would have been of material assistance to the defence; it might also have been breached if, having regard to the realities of the trial, and, viewing the matter realistically, the denial of access might have prejudiced the defence; whether there had been, or might have been, such prejudice was a matter for assessment by the appeal court in the circumstances of each case. It was submitted that here there had been no breach of the principle of equality of arms; no prejudice could be shown to the interests of the appellant. The statements recently disclosed would not have enabled the cross-examination of William McKinnon to go beyond the scope that it originally possessed. They would not have added anything material to the defence case. The statement of 26 July 1999 was in line with the evidence which he had given. The failure to disclose had not resulted in a miscarriage of justice. There was no real possibility that the jury would have arrived at a different verdict had the statements disclosed after the trial been made available before it.

[54] The Advocate depute next turned to deal with ground of appeal 1E, based upon the Crown's late disclosure of the statement by Christina Lawson. He accepted that this statement ought to have been disclosed to the defence prior to the trial, Christina Lawson being a person on the Crown list of witnesses. Accordingly, the first part of the test set out in paragraph [19] of the opinion of Lord Hope of Craighead in McInnes v HM Advocate was satisfied. What was crucial here was what was said in paragraph [20] of that opinion. It should be recognised that Crown Production 72 in the trial process, the transcript of the police interview of William McKinnon on 24 March 1999, was part of the context. There was nothing in the original statement of Christina Lawson which went beyond the matter referred to in that interview. Accordingly there could be no prejudice arising from non-disclosure of the actual police statement, since its contents had been communicated through Crown Production 72 to the appellant's advisers at the trial. In that connection the Advocate depute relied on Affleck v HM Advocate. The appellant in that case had been convicted of wilful fire-raising, attempted murder and murder. A ground of appeal was advanced to the effect that the Crown had failed to disclose outstanding charges against an essential witness in the case. It was said that that failure resulted in the defence being unable properly to prepare and present the case for the appellant; his trial had been unfair, and a miscarriage of justice had occurred. In paragraph [40], Lord Clarke, delivering the Opinion of the Court held that, if an accused person, or his representatives, had discovered for themselves, in substance, the subject-matter of the material which ought to have been disclosed by the Crown, then it would be difficult for them to argue that any non-disclosure of the material had resulted in a real risk of prejudice to the defence.

[55] Looking at the circumstances of the present case there had been disclosure of the statement concerned by a different route, that is to say in Crown Production 72. Therefore, it was submitted that it could not be said that there had been any real risk of prejudice to the defence, which was the test set forth in the decision of the Supreme Court in McInnes v HM Advocate.

[56] Turning to ground of appeal 1G, the Advocate depute submitted that this ground was without substance. The appellant's defence to the charge of murder was alibi. That defence had been properly presented. The Advocate depute accepted in her speech to the jury that the appellant had been in the Republic of Ireland at the time when the murder was committed. Thus the Crown's case against the appellant was involvement on an art and part basis. The live issue at the trial was whether there had been such involvement. In this connection reference was made to Igoe v HM Advocate 2010 S.C.C.R. 759. William McKinnon had given evidence adverse to the appellant. Understandably there was therefore an attack mounted by the defence on his credibility and reliability. The present complaint was that there had been another unused string to the bow. The Advocate depute submitted that while McKinnon had been an important witness, he had not been an essential witness. It was submitted, first, that the material not used would not have added significantly to the defence case. Second, there existed good reasons why a decision may have been taken not to use the material concerned. Therefore it would be useful to analyse the material more carefully. It could be assumed that the former senior counsel for the appellant had read Crown Production 72 at the trial, the transcript of the police interview with William McKinnon, since that would have been his normal practice. From page 64 of that document onwards, there were references to what was the subject-matter of the statement of Christina Lawson not timeously disclosed. At the interview, William McKinnon vacillated concerning his conversations with Christina Lawson. It was not obvious that it would have been of assistance to the defence case if Christina Lawson's statement had in fact been used. William McKinnon might have accepted or rejected what that statement contained. There had been no instructions for an incrimination of William McKinnon. It had to be recognised that the Crown had raised an indictment against him, but subsequently he had been released. In short, the material which had not been timeously disclosed would not have made any difference to the conduct of the defence; furthermore there were potential dangers in its possible presentation to the jury. It was quite understandable why use was not made of that material, of which the defence must be taken to have had knowledge. Summarising his position, the Advocate depute submitted (1) if the statement of Christina Lawson had not been noticed by senior counsel acting at the trial, that did not amount to a failure properly to present the defence case; (2) if it had been noticed and if a judgment had been made not to use it, that judgment was one that counsel was entitled to make and was sound. On any view, there was no miscarriage of justice.

The Decision

[57] We intend to deal with the issues in this referral in the order in which they were considered in the submissions before us. The first ground upon which the appellant's conviction on charge (1) in the indictment is attacked is to be found in the first part of the document, dated 5 March 2007, 1B of the appeal process. It is to be observed that this ground of attack on the conviction is substantially the same as the first of the two grounds of appeal that were argued in the original appeal in this case, dealt with in the decision of this court on 18 February 2004. In essence, the contention is that the contents of the so-called Blackpool confession, which are narrated in detail in paragraph 62 of the Commission's Statement of Reasons, could be viewed, in part, as an admission of actual involvement as an actor in the murder and, in part, could be seen as an admission of responsibility for the murder on an art and part basis.

[58] Quite deliberately, the trial judge decided not to enter into a detailed consideration of these aspects of the evidence of William McKinnon, nor did he give a direction to the jury instructing them explicitly that they could convict the appellant only upon an art and part basis. Among the things that the trial judge did do was to direct the jury, at page 51 and following of the charge, in relation to the law of concert, which he said the jury required to understand. No criticism is in fact focused upon what he actually said in that regard. At page 56 of his charge, he made it clear that the proper approach was to consider, against each accused, whether it had been proved that there was a common criminal purpose and whether that accused was a party to it. If any accused had not been shown to have been involved in that sense in a common plan, he directed the jury that that person could be found guilty only of what he or she had been proved personally to have done. At page 57 of the charge, the trial judge pointed out that the Crown had invited the jury to find it proved that there had been a common criminal purpose from a wide range of circumstantial details. At pages 60 and following, the trial judge said that it was entirely a matter for the jury whether they came to a conclusion that the murder had been planned. If they concluded that it had been, the next question for them was whether there was evidence showing involvement of an accused in a common criminal purpose to kill the now-deceased. In developing that matter, the trial judge, at page 61, dealt with statements made both by witnesses and accused persons prior to the trial. At pages 66 to 67, he made reference to what has been referred to as the Blackpool confession, making the point that, on any view, it could be evidence only against the appellant.

[59] At page 75 of the charge, the trial judge, summing up the position in relation to charge (1) in the indictment, said that the case in relation to that charge had been fully laid before the jury by the Advocate depute and counsel for each of the accused. He told the jury at page 75D that they should pay particular attention to the content of the speeches made to them, going on to say that the Crown could not succeed in this case unless, against all three of the accused, it had established a common criminal purpose, embracing the death of the now-deceased. He then said what is, in our view, significant in this case:

"If there is not a common purpose going that far, you could convict only if you were satisfied as to the individual role of any one of the accused persons and, I think, frankly, you would find that task impossible. Without a common plan you could not convict in this case. So, that is really at the very heart of what you have to consider in relation to the charge of murder."

In our view, that particular part of the trial judge's charge amounts, in substance, to a direction that there could not be a conviction against any accused in relation to the death of the now-deceased unless there had been shown a common criminal purpose in which two or more of the accused were participants, including in its scope the death of the now-deceased. The words used at page 75E to page 76A, noted above, in our opinion, amount to a direction that the jury could not convict anyone of murder unless they were satisfied that a common criminal purpose, having that scope, had been established. It is necessary to point out that this passage was not specifically brought to our attention by counsel during the course of the hearing, but, be that as it may, its significance remains.

[60] Further, the other particular passages in the charge to which we have referred are, in our opinion, important in relation to the issue currently under consideration. Part of the evidence in the case against the appellant was the Blackpool confession spoken to by William McKinnon. Although certain parts of the content of that confession might, standing alone, be interpreted as amounting to an admission of actual involvement in the murder, the jury had been told that, in effect, it was not open to them to convict any of the accused, including the appellant, as actor, but only upon the basis that a common plan involving a particular accused of the appropriate scope had been established. While the directions referred to at pages 75 and 76 are not expressly focused upon the content of the Blackpool confession, looking at the necessary implications of what was said by the trial judge, we consider that the jury could have been in no doubt that they could not proceed to convict the appellant on charge (1) as actor, whatever they might have thought about parts of the content of the Blackpool confession. Thus, we conclude that the first ground of attack contained in the document of 5 March 2007 is without substance.

[61] Having taken the view that we have, concerning what the trial judge said, particularly at pages 75 and 76 of the transcript of the charge, it is right that we should comment on the decision of this court in the original appeal, in so far as it bears upon the issue under consideration. In paragraph [35] of that opinion the court expressed the view quoted in paragraph [18] above.

[62] We find ourselves unable to agree with that view. It seems to us that, in view of the directions which were given to the jury at pages 75 and 76 of the transcript of the charge, it was unnecessary for the trial judge to be more specific in relation to particular tracts of evidence and to say, in relation to each such tract, for example the Blackpool confession, that the appellant could only be convicted upon an art and part basis. That had been made clear in general terms. Accordingly, in this respect, we conclude that there was no misdirection of the jury.

[63] On the approach which we have taken, in regard to this aspect of the case, no question of a miscarriage of justice can therefore arise. However, if, as this court considered in the original appeal, there had been a technical misdirection in this particular respect, we would agree with the court's view that that was not of any materiality in the circumstances of this case. The jury had heard the speeches of the Advocate depute and for the appellant, both of which were presented on the same basis, namely that the appellant was in Ireland at the time of the murder and that the only case that the appellant had to meet was therefore one of involvement art and part. In this connection, it must always be borne in mind that, in dealing with appeals on the ground of misdirection, this court will not examine a charge to the jury as if it were a conveyancing document, or in isolation from the background of the evidence and the arguments in the trial, what have been described as the living context of the trial (Gemmill v Her Majesty's Advocate).

[64] We turn next to consider the second ground of attack upon the appellant's conviction specified in the document dated 5 March 2007, 1B of the appeal process, to the effect that the trial judge failed to give adequate directions to the jury regarding the approach they should adopt in assessing the evidence of William McKinnon generally. This point was, of course, not raised in the original appeal. An important part of the factual background which requires to be recognised in connection with this submission is that, while William McKinnon had appeared on an indictment arising out of the murder of the now-deceased as an accused person, which indictment had been brought to trial, that trial had been deserted pro loco et tempore on account of the illness of the presiding judge. Following upon that event, William McKinnon had been released from custody and invited to give statements to the police, making any subsequent prosecution of him for the murder in question impossible. It is not easy to see what particular interest William McKinnon might have had, from that stage onwards, to suggest falsely that any particular individual might be guilty of that crime.

[65] In Docherty v Her Majesty's Advocate a bench of nine judges considered the issue of whether there was any rule of law requiring a judge to give what was described as a cum nota warning to a jury in respect of a socius criminis. The appellant in that case had been charged with committing an assault and robbery along with three other persons. These three, who had all pleaded guilty to the offence, were called as Crown witnesses at the appellant's trial. There was also other evidence against the appellant from other witnesses. The trial judge did not give the jury a cum nota warning in relation to the three men involved, taking the view that such a warning was necessary only where the evidence against an accused consisted solely of evidence from socii criminis. The appellant was convicted and appealed against his conviction on the ground of the judge's failure to give the warning. The court held that there was no rule of law which required a judge to give the jury a cum nota warning in every case in which a socius criminis was called as a Crown witness. Delivering the Opinion of the Court, at page 431, Lord Justice General Emslie said this:

"[T]rial judges need only give to juries in all cases, whether or not any socius criminis has been adduced as a witness for the Crown, the familiar directions designed to assist them in dealing with the credibility of witnesses and any additional assistance which the circumstances of any particular case may require. If, for example, the credibility of any Crown witness, including a socius criminis, is in any particular case attacked by the defence on the ground of alleged interest to load and convict the accused or, indeed, on any other ground, the trial judge will normally be well advised to remind the jury that in assessing the credibility of the witness concerned, they should take into consideration the criticisms which have been made of the witness in the course of the presentation of the defence case."

[66] In Docherty v Her Majesty's Advocate, the issue of a warning to the jury arose in relation to three witnesses who had all pleaded guilty to the offence in question and were called as Crown witnesses at the appellant's trial. The factual context of that case was therefore quite different from the present one. In the present case, while William McKinnon had been an accused person, following the desertion of the first trial, in which he had been an accused, and his giving of a statement to the police, he ceased to be an accused person and plainly could not thereafter become an accused again. In those circumstances, we cannot see that his position was in any way comparable to that of the three individuals who had pleaded guilty in Docherty v Her Majesty's Advocate. Putting the matter in another way, it is difficult to identify why William McKinnon should have been seen as a person who had any continuing interest, to use the words of Lord Justice General Emslie, "to load and convict the accused". However, leaving that point aside, what we intend now to do is examine the directions actually given to the jury by the trial judge in the light of the criterion clearly enunciated in Docherty v Her Majesty's Advocate.

[67] At pages 8 and following of his charge, the trial judge gave the normal directions to the jury concerning the evaluation of evidence, with particular reference to its credibility and reliability. At page 61E and following, the trial judge deals particularly with statements made prior to the trial. Once again he gave the normal directions relating to such statements. At page 63C he dealt specifically with the position of William McKinnon in relation to prior statements. He gave a standard direction relating to their significance in bearing upon this witness's credibility and reliability. Thus it appears that the trial judge simply gave standard directions to the jury in relation to the evaluation of the evidence of witnesses, including that of William McKinnon.

[68] The question then is whether the decision of the trial judge to go no further than that in relation to the evidence of William McKinnon amounts to misdirection. It is quite evident from what was said in Docherty v Her Majesty's Advocate that whether some particular direction should be given in relation to the evaluation of the credibility of some particular witness must be a matter for the discretion of the trial judge to be exercised in the light of the particular circumstances of the case in question.

[69] Relevant to the exercise of that discretion would plainly be the matter of what had been said about a particular witness's evidence in the course of the speeches to the jury. With that in mind we turn briefly to see what was said as regards the evidence of William McKinnon in those speeches. First of all, the Advocate depute dealt with the evidence of McKinnon between pages 65 and 76 of the transcript of her speech. While it is clear from what she said that she foresaw that his evidence would be the focus of criticism on the part of the defence, she plainly commended it to the jury. Senior counsel for the appellant took up the position that William McKinnon's evidence constituted a major plank of the Crown's case, as is evident from page 106 of the relevant transcript. However it was at page 113 and following that senior counsel made more detailed submissions about his evidence. At page 114, he drew attention to the fact that, as he put it, the Crown had had a somewhat ambivalent attitude towards him over time. He drew attention to the fact that he had been an accused person in the first trial relating to the murder. He went on to ask the jury to consider carefully whether his evidence was worthy of credit, in the light of the considerations which he had mentioned. He invited the jury to treat his evidence with "the greatest caution", as appears from page 115 of the transcript. In his examination of McKinnon's evidence he drew to the attention of the jury disparities between what this witness had said in evidence and on earlier occasions. In the end, senior counsel for the appellant invited the jury to reject the evidence of William McKinnon.

[70] Thus, in the light of what was said to the jury, it must have been perfectly plain to them that the credibility of William McKinnon was a serious issue in the case, he being commended as credible by the Crown, while it was argued on behalf of the appellant that his evidence was incredible for a number of reasons, including the fact that it was said he had given inconsistent statements at different times about material facts, and also because his status had originally been that of an accused person, but he had subsequently become a Crown witness. Against this background, in our opinion, the trial judge was entitled to exercise his discretion to take the view that he should confine himself to giving the general directions concerning witnesses that he did, and to refrain from going into the detailed criticisms of William McKinnon's evidence that had been expounded by senior counsel for the appellant. It is plain from the observations of the trial judge at page 8 of his original report to this court that he foresaw dangers to the appellant if he were to have adopted an alternative approach, involving his engaging in a detailed analysis of the evidence of McKinnon, particularly in the light of the content of the Blackpool confession, which plainly involved some uncertainties and ambiguities.

[71] In all these circumstances, we conclude that the trial judge was quite entitled, in the exercise of his discretion in this area, to take the course which he did. We therefore conclude that there is no substance in the second ground of attack of the appellant's conviction expressed in the document dated 5 March 2007. We should make clear that we feel able to reach that conclusion despite the faint suggestion advanced by senior counsel for the appellant that the material referred to in the document dated 30 January 2008, namely statements by William McKinnon dated 7 and 26 July 1999, might bear upon the ground of attack of the conviction currently under consideration. We have insuperable difficulty in seeing how that material could influence the assessment of the trial judge's decision not to give specific directions to the jury relating to the credibility of William McKinnon's evidence. In these circumstances we reject the grounds of attack on the conviction contained in the Note of Appeal dated 5 March 2007.

[72] Turning to the grounds of appeal contained in the document dated 30 January 2008, 1D of the appeal process, the focus of these grounds is the disclosure by the Crown of police statements given by William McKinnon, dated 7 and 26 July 1999, long after the conclusion of the trial. As regards the criterion to be applied in a situation such as this, following the decision of the Supreme Court in McInnes v HM Advocate, there was agreement between the parties. In this connection it is appropriate to note the observations of Lord Hope of Craighead in paragraph [20] of his opinion in that case. There he said this:

"... A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether, given there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate [[2005] HCJAC 126; 2006 S.C.C.R. 9] at page 20, para 35, as a consequence there was no miscarriage of justice: see s 106(3) of the Criminal Procedure (Scotland) Act 1995. The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict."

[73] Applying that criterion, we consider that this particular ground of appeal is without merit. In our view, the statements which were disclosed following upon the trial would not have enabled the extensive cross-examination of William McKinnon to go beyond the scope that it originally possessed. Putting the matter in another way, those statements would not have added anything material to the defence case. The statement of 26 July 1999, in particular, was in line with the evidence which William McKinnon had given. In these circumstances, we reject this ground of appeal.

[74] We turn next to consider the matters raised in ground of appeal 1E, dated 2 July 2009 and allowed to be argued on 13 October 2009, based upon the late disclosure of the statement of Christina Lawson after the trial and the first appeal. The police witness statement of Christina Lawson, to which this ground of appeal relates, is available as item 8 in the productions of the Crown for the purposes of this appeal. In the statement, Christina Lawson describes several conversations that she had had with Willie Kinnon (sic), a reference to William McKinnon. The statement was given on 21 December 1998. In it she states:

"About a month ago I remember seeing something in the papers about a murder inquiry. Willie Kinnon phoned me up and asked me if I had seen the papers about the murder and I asked why. He told me that he wasn't involved but was part of the cover-up. When I asked him what he meant he said that he hadn't murdered him but he had helped to get rid of the body. I didn't ask him any more because Willie is always telling me stories to make out that he was a gangster. He phoned me from Blackpool and said he wanted to get away from things. He had too much pressure from the police and people. He said he was in Blackpool with his friend Frank. I had met a guy called Frank before. He had given us a lift from the Bay Horse. He told me that he was going to come back from Blackpool and hand himself in to Aitkenhead Road police office. He phoned me again when he got back from Blackpool and he said that he had been into the police station and was kept for about four hours. The last time I spoke to him was two weeks ago. He phoned me to give me a new phone number. I don't have the number now. I can't remember anything else. He didn't tell me who had murdered him. I didn't really believe Willie because he was always telling stories, trying to make himself look big. I can't think of anything else that would help."

[75] It is important to recognise that William McKinnon was asked questions about what he might have said to Christina Lawson during the tape recorded interview between him and police officers, which took place on 24 March 1999, the transcript of which was a production at the trial. At page 65 of the transcript and following, police officers put numerous questions to William McKinnon concerning what he had said to Christina Lawson. Furthermore, at page 69 and following, quotations were put from Christina Lawson's police statement to William McKinnon for his comment. Prominent among the matters put to William McKinnon was the claim by Christina Lawson that he had indicated to her that he had been involved in the cover-up after the murder, in respect that he had helped to get rid of the body. In our view, in the light of that material, it would have been obvious to any reader of the transcript of the interview that the police had been in possession at the time of that interview of the witness statement of Christina Lawson. Indeed, a reader of the transcript would have understood what were the crucial parts of that statement, since they were quoted in questions to William McKinnon

[76] In Affleck v HM Advocate, in delivering the Opinion of the Court, Lord Clarke, at para [40], dealt with the consequences of non-disclosure of matters which ought to have been disclosed, in the particular circumstances of the case. There he said:

"The duty to disclose, and any breach thereof, are but stepping stones towards possibly establishing a breach of the requirement of a fair trial under article 6 and that, therefore, there has been a miscarriage of justice. In McInnes at paragraph 35 Lord Brown posed the question: 'What, then, in the context of an undisclosed statement, makes a trial unfair?' The same question falls to be addressed in relation to undisclosed outstanding charges. Having posed the question Lord Brown continued: 'This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence'.

Underlying these considerations is, as noted above, what is often referred to as the need to have equality of arms as between prosecution and defence. It appears to us that if the accused, or his representatives, have discovered for themselves, in substance, the subject-matter of the material which ought to have been disclosed by the Crown then it would be difficult for them to argue that any non-disclosure of the material had resulted in a real risk of prejudice to the defence."

[77] A comparable kind of situation arose in Gordon v HM Advocate 2010 S.C.C.R. 589. There the consequences of the Crown's failure to disclose the complainer's statement to the police were considered. In paragraph [82] of the Opinion of the Court, delivered by Lord Carloway, it was held that while the Crown's obligation to disclose the complainer's statement to the police had, strictly speaking, not been fulfilled, the point was entirely academic because the appellant's representatives had been well aware that, when the complainer had been interviewed by the police, she had made the particular statements considered.

[78] In the light of these authorities, it is unsurprising that senior counsel for the appellant accepted that actual knowledge on the part of the appellant's advisers of the material not disclosed would entail that a ground of appeal based on non-disclosure would fail. As we see it, that principle has application in the circumstances of this case. The transcript of the tape recorded interview between the police and William McKinnon had been made a Crown Production prior to the trial. It must therefore be taken that its contents were known to the appellant's advisers. That is confirmed by the response, dated 11 January 2011, by the former senior counsel for the appellant to intimation to him of the amended ground of appeal 1G in this case, in the third paragraph, already quoted.

[79] Looking at the factual situation regarding the police statement of Christina Lawson just described and in the light of the authorities we have mentioned, our conclusion is that, while there was a failure on the part of the Crown to disclose timeously the police statement of Christina Lawson to the appellant's advisers, it cannot be concluded that the appellant's trial was unfair in consequence. In this connection it is appropriate to reiterate what was said by Lord Brown in McInnes v HM Advocate, at paragraph 35:

"The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence."

In the light of the circumstances of this case, we cannot conclude that the non-disclosure of Christina Lawson's statement itself had any such consequence, given that the crucial parts of it were in fact disclosed in the form of the transcript of the police interview with William McKinnon.

[80] While that conclusion is sufficient for the determination of this ground of appeal, we think it appropriate to consider for a moment what use might or might not have been made of the police statement of Christina Lawson. In our view, cross-examination of William McKinnon based upon the crucial parts of Christina Lawson's statement that we have quoted would have been pregnant with danger so far as the appellant was concerned. William McKinnon had been a close associate of the appellant. Any acceptance by William McKinnon that he had been part of the cover-up following the murder of the deceased and that he had helped to get rid of the body of the deceased would have been likely to jeopardise the position of the appellant, whose defence was to the effect that he had had nothing to do with the murder. In any event, it is evident from the transcript of the evidence of William McKinnon that he was very extensively questioned in cross-examination, with a view to the undermining of his credibility. We do not consider that the putting to him of material derived from Christina Lawson's police statement would have made any difference. For these reasons we reject this ground of appeal.

[81] Turning finally to ground of appeal 1G, the allegation here is one of defective representation on the part of those representing the appellant at the time of the trial, on the basis that there was a failure to obtain further information from the Crown about the statement of Christina Lawson and, having obtained that information to cite and lead evidence from her to attack the evidence of William McKinnon. It is said in this ground of appeal and it was said in oral argument that this ground was a corollary of ground of appeal 1E.

[82] Having regard to the character of this ground of appeal, it is appropriate to recall the observations of Lord Macfadyen, delivering the Opinion of the Court, in Burzala v HM Advocate. In paragraph [33] he said:

"It is salutary, when considering an appeal advanced on the ground that the representation of the appellant at his trial was defective, to bear in mind the observations made by Lord Justice General Rodger in Mills (at 221F-H) and quoted in paragraph [28] above. They are as relevant to such an appeal as they were to the additional evidence appeal in which they were made. They, and the observations of Lord Justice General Hope in Anderson (at 131C to 132A) quoted in paragraph [23] above, explain why the scope for an appeal on the ground of defective representation is limited. The limitations are clearly established. Such an appeal, like any other, can only succeed if there has been a miscarriage of justice (Criminal Procedure (Scotland) Act 1995, section 106(3)). That can only be said to have occurred if the conduct of the defence has deprived the appellant of his right to a fair trial (Anderson, 131F; Grant, paragraph 21). That, in turn, can only be said to have occurred if the appellant's defence was not presented to the court (Anderson, 131G; Grant, paragraph 21). That may be so if the appellant's counsel or solicitor acted contrary to instructions and did not lay before the court the defence which the appellant wished to put forward (Anderson, 132A). It may also be so if the defence was conducted in a way in which no competent counsel or solicitor could reasonably have conducted it (Grant, paragraph 21); and that has been illustrated by reference to counsel having made a decision that was 'so absurd as to fly in the face of reason' (McBrearty, paragraph 36), or 'contrary to the promptings of reason and good sense' (McIntyre, 240H). It is clear, however, that the way in which the defence is conducted is a matter for the professional judgment of counsel or the solicitor representing the accused person (Anderson, 131D). Criticism of strategic or tactical decisions as to how the defence should be presented will not be sufficient to support an appeal on the ground of defective representation if these decisions were reasonably and responsibly made by counsel or the solicitor in accordance with his or her professional judgment (Grant, paragraph 22)."

We respectfully agree with that approach.

[83] In dealing with this particular ground of appeal, one of the difficulties arising is that, at this distance in time from the trial, more than ten years, senior counsel who then represented the appellant, as he indicated in his response to this ground, was unable to recall what consideration he gave to the passages in Crown Production 72 comprising quotations from the police statement of Christina Lawson. He went on to state in that response that he was not in a position to tell the court why no application was made to the Crown for the police statement. He speculates that it might have been that the potential significance of the statement was not appreciated at the time because of the oblique way in which it was revealed to the defence. Alternatively, he considered that it was also possible that a decision had been made not to proceed down this line of enquiry, having regard to Christina Lawson's history of drug addiction and in the light of her comments to the police that William McKinnon was always telling her "stories". He states that it is possible too that there was anxiety that, if pressed about this matter in cross-examination, McKinnon would have claimed that the appellant was involved in the "cover-up" and the hiding of the body of the deceased. While senior counsel recognises that the information in Christina Lawson's police statement would have provided him with some formidable additional material with which to cross-examine William McKinnon, for the reasons that he gives, that course might well not have been taken.

[84] Against this background of uncertainty about the approach of the appellant's advisers at the time of the trial to the material concerned, it seems to us that there are a number of possibilities. First, it may be that the appellant's then advisers did not appreciate the potential significance of the material concerned. Secondly, it may be that they did appreciate the potential significance of the material and that they decided not to make use of it as a matter of professional judgment, having regard to the possible dangers inherent in its use. Thirdly, it may be that they did decide to use it in some way or other, but, in the event, omitted to do so. What we do know from the response by senior counsel to this ground of appeal is that the transcript of William McKinnon's police interview must have been read by him. Having regard to that, the fact that use was not made explicitly of the contents of Christina Lawson's statement may have an explanation that is perfectly consistent with the proper representation of the appellant, as explained in Burzala v HM Advocate. For the reasons which we have outlined, it may be that a decision was taken to the effect that its use would have been associated with such risks to the interests of the appellant that the proper course was not to make use of it. We see no reason why we should reject that possibility in favour of some other possibility which conceivably might arguably provide a basis for the ground of alleged defective representation. Had this matter been raised at a very much earlier stage in the history of these proceedings, there might have been greater clarity as to the decision making process of counsel, but, for whatever reason, that was not done.

[85] At the time of his trial, the appellant was represented by experienced senior counsel. It appears to us that it would have been entirely reasonable on the part of counsel then acting to decide not to make any use of the material derived from Christina Lawson's police statement; we have not been persuaded that the explanation for the non-use of the material was anything other than a proper professional judgment. In all these circumstances, we reject this ground of appeal.

[86] In the light of this and our other conclusions, we consider that the appellant's appeal must fail.