STUART MITCHELL GAIR v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Hamilton Lord Sutherland | [2005HCJAC69] Appeal No: XM1/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in referral by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cause STUART MITCHELL GAIR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, Q.C., Miss Livingstone; John Macaulay & Co, Glasgow
Respondent: Stewart, A.D., Gianni; Crown Agent
7 June 2005
Introduction
[1]On 30 August 1989 the appellant was found guilty of a charge of murdering Peter Dewar Smith. According to the terms of charge, in North Court Lane, Glasgow he struck the deceased on the chest with a knife or similar instrument, whereby he sustained injuries from which he subsequently died on 29 April 1989.
[2]The case for the Crown relied on evidence given by William McLeod that he accompanied the appellant and the deceased into the lane, which runs from the south side of St Vincent Place (part of St Vincent Street) in the direction of Royal Exchange Square. The appellant pulled out a knife. The witness heard a moan from the deceased, at which point he ran away. The Crown also relied on the evidence of a number of witnesses who identified the appellant as having been in the company of McLeod in or near the lane at or about the relevant time. Evidence was also given by two police officers that the appellant and McLeod were later seen walking together in Gordon Street, a few streets away from St Vincent Place. Examination of a pair of denims worn by the appellant showed smears of blood at the mouth of the right hip pocket. There was evidence that when the denims were handed over to the police the appellant stated that they had been washed in carbolic. On the back of the heel of the appellant's left training shoe there was a large directional spot of blood, which was of a blood group common to the appellant and the deceased. Bloodstaining on the pavement and balustrade at the corner of the lane and St Vincent Place pointed to the deceased having come from the lane to the public toilets on the south side of St Vincent Place, near its junction with Buchanan Street.
[3]Following the reference of the appellant's case to this court by the Scottish Criminal Cases Review Commission, the appellant presented grounds of appeal in which it is maintained that there was a miscarriage of justice, on the basis of the evidence of persons which was different from, or an additional to, the evidence which they had given at the trial. Following argument the court decided, for the reasons given in its opinion dated 26 February 2003, that it should hear this evidence, namely that of McLeod, Brian Morrison, David George Cairney Smith and Alan John Gillon, together with the evidence of Hector McLeod Wood who had not given evidence at the trial. In reaching that decision the court had before it affidavits sworn by McLeod, Morrison, and Gillon. In due course on a number of dates the court heard the evidence of these witnesses, with the exception of Smith, who were led by the appellant, and the evidence of a number of other witnesses adduced by the Crown. The court was informed by Mr Jackson, who appeared for the appellant, that it had not been possible to trace Smith. The court was also asked to uphold an additional ground of appeal, which was received at a late stage in the history of the appeal. This ground of appeal related to the evidence given by one of the police officers to whom we have referred.
[4]In this opinion we consider in the first place the evidence given in this appeal by McLeod, Morrison, Gillon and Wood. It is for the appellant to satisfy the court as to the "significance" of that evidence, for the purpose of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995). Subsection (3A) also requires there to have been "a reasonable explanation" of why that evidence was not heard at the trial. Since McLeod, Morrison and Gillon gave evidence at the trial, there also requires to be a reasonable explanation why evidence which "is different from, or additional to" evidence which each of them gave at the trial was not so given, and that explanation has to be supported by independent evidence (subsection (3C)).
[5]As to the "significance" of the evidence of the four witnesses we bear in mind that, as was pointed out by the court in Kidd v H.M. Advocate 2000 JC 509 at paragraph 23, the question is not simply whether such evidence is significant but "whether it is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice". cf Cameron v H.M. Advocate 1991 J.C. 251 at page 261. The court also stated in Kidd at the same paragraph that it was clear, as a matter of common-sense, that the 'significance' of evidence included considerations as to its relevance, materiality and importance. It was also plain that it included its quality in point of credibility and reliability. As to the latter the court expressed the opinion, in paragraph 24, that it was sufficient that the appeal court was satisfied that the additional evidence was capable of being regarded by a reasonable jury as both credible and reliable. At the same time the court pointed out that the cogency of the additional evidence was of critical importance.
The evidence of William McLeod
[6]It is convenient to take first the evidence of McLeod. Following the circulation of an e-fit picture, prepared with the assistance of one of the police officers who had been in Gordon Street, he was asked on 6 May 1989 by a police officer to attend at Stewart Street Police Office. Thereafter he was detained and interviewed by police officers. At the end of a taped interview he was charged with the murder of the deceased. His reply was: "I never murdered him. I ran away when I saw the knife being produced". On 8 May 1989 he appeared in the Sheriff Court and made a declaration under section 20 of the Criminal Procedure (Scotland) Act 1975 (the 1975 Act). Before the commencement of the trial the Crown decided to accept his plea of not guilty. He was discharged from the dock. Thereafter he was precognosced on behalf of the Crown and the defence. For reasons which will become obvious we will require to set out his evidence at the trial in some detail.
[7]When he was called as a Crown witness to give evidence on the morning of the first day of the trial (23 August 1989), he indicated to the court that he wanted to change his "statement". He then gave an account of having been in St Vincent Place on the night of the incident, after being in the area of the Buchanan Street bus station. He went to the toilets. No one was with him or caught his attention. He walked round the block perhaps five or six times, once through the lane (page 46). He saw nothing unusual happening. He did not see an ambulance or police officers at the toilets. This was about 11 p.m. He passed along Gordon Street some time between 11 p.m. and midnight. He was in Gordon Street two or three times, always on his own (pages 52-54). He had been in that area quite a few times, maybe once or twice a week. When he was interviewed the police mentioned the name Gair and said that he knew him and had been with him. However, he knew no one of that name. The police told him that Gair had murdered the deceased. The police asked if he (the witness) was gay. McLeod claimed that he ended up making up a story "so they would leave me alone" (page 51). He was saying the first things that came into his head (page 56). In explanation of this he said: "They were sort of getting nippy... sort of angry, agitated...and this was putting me under stress, I was getting more and more panicky". The police asked him who had the knife. He replied that he did not know anything about it (page 63). "The next thing I just started... I had made up this story that I knew Stuart Mitchell Gair as that's what was on the sheet.... that I knew Stuart Mitchell Gair and I was there when it happened and there was other people there, and then I says I had saw Gair with the knife and that I ran away when I saw the knife. I never saw the guy being stabbed and I never saw him after that. That's when they took me in and put me on the tape" (page 64). McLeod also said that he made up two names. They had been planning to mug someone for money. There was a struggle with the guy and a squeal (page 66). McLeod said that he did not even know what made him make up the story. He wasn't thinking at all (page 71). He told them about the squeal before he told them that he knew Gair (page 73). The police had already mentioned his name (pages 74). The detectives had already asked who had the knife (pages 75-76). He mentioned a commotion and seeing a knife before he mentioned Gair (pages 78-79). He honestly couldn't say what made him say that Gair had the knife (page 80). The police told him that he was being charged with murder, but that, if he co-operated, everything would be okay. He would be called as a witness. Then he made up the story. This was after he had been refused a lawyer. Then they told him that he was being detained and charged. He accepted that in the taped interview he had agreed that he was not being forced or coerced (page 68).
[8]Prior to the lunch break McLeod was warned by the Advocate depute about the seriousness of perjury. When he returned to the witness box after lunch McLeod stated that he had not told the truth. He then gave evidence that he met the appellant and the deceased (who said his name was "Peter") at the bus station at the back of nine o'clock. They went down to St Vincent Street and stood there. Then the appellant and the deceased went through the lane. He did not think that anyone else was there (page 97). "The next thing a scuffle broke out and I saw the knife and I ran" (page 88). The knife was in the appellant's hand. He pointed out by reference to a photograph and a plan where the scuffle had taken place in the lane, and where he (the witness) was standing. He described the blade of the knife as about 9 inches long, from what he could remember of it. He heard a sort of moan. He went out into St Vincent Place and George Square. He saw the appellant and asked him what had happened to the deceased. The appellant told him not to worry about it and that nothing had happened to him, and just walked away. "He told me to say I didn't know him and he would say he didn't know me, and that was it. I left him at Gordon Street" (page 95). That night the appellant was wearing a black jacket or sweatshirt, jeans and training shoes. The shoes were white and scruffy (page 97).
[9]However, when McLeod came to be cross-examined and was asked whether what he said at the police interview was true, he said: "Most if it was true; I was trying to make up a story so they wouldn't connect me to the case" (page 99). He did not know the appellant, and was not with him that night. He did not see him that night. Therefore he did not see him with the knife in his hand. Asked what had happened at lunchtime to change his position he replied: "Because I thought about it while I was outside" (pages 104-105)
[10]After he left the witness box McLeod was detained and thereafter charged with perjury. He obtained legal advice. On the following morning, at the request of his solicitor he was recalled under section 148(4) of the 1975 Act. On entering the witness box again he confirmed that he wanted to be recalled, adding: "I am scared, that's all, really scared". He said that a detective had said to him on the way to the court that he was just to tell the truth. That was all that he said (page 181). He gave an account of going into the lane at the back of 11p.m. He ran away because he saw a knife in the appellant's hand, after which he heard a moan. He saw the appellant again in Queen Street. Then they walked together, including in Gordon Street. The appellant was wearing a black jacket or jumper, jeans and white training shoes.
[11]It may be noted that in the course of his evidence McLeod was referred to the terms of his declaration before the sheriff (Prod 46), in which he said: "On the night I was arrested, when I was taken in, I was taken in, I went in voluntary and I was asked a few questions about where I was. I have no, I have no proof of where I was that night and the police were firing this Stuart Gair's name at me. The police were asking me about this Stuart Gair, the chap that I knew nothing about. I didn't even know him, I had never met him before in my life and the night of this incident, I don't know where I was, I don't have anything to do with it, I was nowhere near there and I don't know a thing about it and I know it's on tape but I feel as if I was pressured into the things that I said on the tape. It was the tape at the police office".
[12]It is clear from the transcript of his evidence that at certain points McLeod was in some distress. When he was asked by the Advocate depute in the morning of the first day of the trial what was distressing him, he said that there had been so much pressure on him during the last few months when he had been locked up in Barlinnie. He added: "I have never been in prison before and when I was in prison there were things that had happened" (page 67). Later that morning he said: "I am just scared, just scared". Asked what he was scared of, he replied: "Well, you know, as I explained, I've had a threats in prison; I had threats... The first threat was that I was going over the gallery if Stuart Gair went down for this murder. The second threat was I had stuck him in and I was getting my jaw ripped, I was getting the face taken off me, and I was told this twice" (page 84). He went on to say that the first incident was before he was fully committed: the appellant had come to the door and asked if he was in for the murder, and he told him that he was (page 85). When he was cross-examined on the following morning as to what had made the difference to his position, he replied: "Yesterday I wasn't thinking straight because I had been threatened a lot by Stuart Gair. I had been threatened by him in prison. On two occasions I had been threatened and a lot of people were beginning to talk about me in prison as well and that was why I was coming in yesterday to say I didn't know him when I actually do know him". When he was outside he thought it would be best if he came in and told the truth (page 176). He was still frightened of the appellant (page 178).
[13]In evidence to this court McLeod gave an account which was to a large extent similar to the evidence which he gave on the first morning of the trial. However, he stated that he did not know where he was on the night of the incident. He did not go into the lane. He did not think that he was in Gordon Street. Being at the toilets was all part of the lies that the police were getting him to tell (page 632). So also was the part where he was supposed to have met up with the appellant (page 689). The police told him that the appellant was a "junkie"; that he had had his girlfriend "on the game"; that he had beaten up his mother; and that he was a thief. The police said to him (McLeod) that they were going to tell his family and his friends that he was gay and was giving "blow jobs" in the city and things like that (page 508). This scared him. However, he accepted that his father had called him gay from when he was a kid, and that he had gay friends (pages 492-3). The police officers said to him that all he had to do was to say that he knew the appellant, that he was with him, and had seen the knife and everything else. Then they were going to let him go and he would be home that night (page 510). They wanted a third name, and foolishly he gave them the name of Edward Harkinson. One of the police officers told him that the appellant had the knife (page 513). It appears from McLeod's evidence that the story was to be that the deceased was to be mugged in the lane; someone gave him the nod, and McLeod ran when he saw the appellant with the knife (page 514). The police gave him the basic story, and he had to add bits to it (page 524). He added the bit about running away (page 525).
[14]The court was referred to the text of the taped interview which was conducted by DI Smith and DC Shaw (Prod 45). On it McLeod was recorded saying that he had been standing at the toilets and talking to the appellant, Harkinson and "Charlie" about mugging someone for money. He went into the lane with them and a "guy". "The next thing he just started battering the guy and then when ah saw Gair pulling oot a knife ah ran, ah didnae hit the guy, ah didnae hit him, but ah ran because ah saw this knife coming oot fae Gair" (page 4).
[15]McLeod informed the court that he felt "absolutely gutted" about being detained on the charge of murder. He did not think it had registered with him that he was already being treated as a suspect (pages 525, 674). Even when he was charged with murder it still did not sink in (page 681). Before appearing before the sheriff he had told his solicitor everything. She said that he should say what he had got to say (page 687).
[16]In regard to the trial, when it was pointed out to him that on the morning of the first day he gave evidence about his being in St Vincent Street on the night of the incident which was to the same effect as he stated at the police interview, he responded: "Yes, because by this point, silly as it may sound, but I didn't know what the truth and what the lies were by this point, do you know what I mean, because I had been set free, it was still in the back of my mind that if I still didn't tell this lie I was going to be locked back up again" (page 541). He did not know why he had given evidence about being threatened in prison. He never had a clue what was going through his head (page 575). It was lies (page 617). He only once came across the appellant in prison, and that was when he came to the cell door to ask who was Willie McLeod. If there were any other threats made, he did not remember them (page 640). As regards lunchtime on the first day, he said that he was in a small room in which he heard a conversation between two police officers in uniform. They were talking in front of him, saying that "that bastard McLeod is retracting his statement", and that he was "fucking up the case" (page 576). He started to panic again and tell lies again. There was mention of perjury, and he had no support from anyone (pages 577 and 583-4). As to why he reverted in the afternoon to claiming that he did not know the appellant, he said that he did not know because he kept chopping and changing (page 596). The detectives who had interviewed him took him back to the High Court the following morning. They warned him that he had better stick to the original story. He thought that otherwise his life was going to be hell. Prompted by reference to his affidavit he said that he remembered being told that he was looking at eight to ten years for perjury (pages 601-602). He saw his solicitor at the court. He explained to her that he never knew the appellant, and the way in which he had been treated at the police office (page 621). "I told her about how afraid I was. She told me just to go in, tell the truth and get it over and done with and I went in and I told lies" (page 604).
[17]After the trial he felt horrible that his evidence could have been important. He claimed that he did not know the verdict in the case. He just wanted to forget about it. He believed what the police had said about the appellant (page 608). He discovered about the verdict a few years later when a private investigator was looking for him. Then he said he had seen a newspaper article to the effect that a man had been sentenced to life for the murder. It put him in total and utter depression. As time went on he started to get a bit wiser and he started to realise a few things that had happened and that he had done. He suffered depression and panic attacks. He lived alone, and gave up his job. One day he was visited by a campaigner who wanted to find out what was his involvement in the case. This was in 1993-94, maybe later (pages 610-614). He accepted that he had been under no pressure from the police after the trial (page 713).
[18]For the appellant, Mr Jackson submitted that McLeod was clearly a very weak and a vulnerable person who would have found it difficult to resist the type of pressure which he described in a compelling account. The threat of being ridiculed as a gay person would have been serious and frightening, not only because of the culture at the time but also because his mannerisms had been a problem for him throughout his life. It was understandable that he would co-operate with the police in order to get home: it was unrealistic to expect him to appreciate the difference between the effect of detention and that of arrest. It would have been easier for him to have blamed the appellant, but he did not do so, nor did he give notice incriminating him. Cross-examination had shown that he was a weak type of person who had little understanding of what was going on and did not know which way to turn. This helped to explain how he changed his position repeatedly at the trial. There was considerable doubt about the evidence which placed him near the locus on the night of the incident. Mrs Norma Wallace, the precognition officer, in a note on information given by Smith on 7 August 1989 (Prod 67), had said that, since there was no apparent connection between the appellant and McLeod, she had always doubted whether McLeod was the second man. The evidence of PC Shirley Marnock, to which the additional ground of appeal relates, that she had seen him in Gordon Street was entirely unsatisfactory. McLeod had no motive for giving false evidence now.
[19]We have to consider in the first place whether the evidence given by McLeod is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice. What is the evidence of McLeod of which the jury was ignorant? It is plain that to a very large extent his evidence before this court is a repetition of evidence which he gave at the trial. We note that the trial judge directed the jury that McLeod's evidence was crucial to the Crown case, and that they would not be entitled to convict the appellant unless they reached the view that he was telling the truth when he gave evidence that he saw a knife in the appellant's hand. He also directed them that they required to be extremely careful in weighing his evidence. This was because of the way in which his evidence had swung between different versions; the fact that he had been a co-accused; and the fact that, when he gave evidence on the second day, he had been charged with perjury. If the jury followed these directions, as we must assume, they considered (and rejected) the parts of McLeod's evidence in which he claimed that he knew nothing of the appellant or his involvement in the incident and that what he said to the police and in the trial to a contrary effect was not true. The Advocate depute pointed out that the only evidence which was given by McLeod before this court which was not given by him at the trial consisted of (i) further details of threats by the police to expose him as a homosexual; (ii) further allegations by the police about the appellant, namely that he was a "junkie", that he had had his girlfriend on the game, that he had beaten up his mother, and that he was a thief; and (iii) his account of the conversation between two police officers during the lunchtime break on the first day of the trial. Quite apart from any question as to whether this evidence made any material difference to the evidence which the jury rejected, there are serious doubts as to its credibility. The Advocate depute pointed out, by reference to the transcript of the police interview, that McLeod had accepted that he was bisexual. In evidence to this court he stated that, as a result of his father's behaviour, everyone assumed that he was gay (page 493). In these circumstances it is highly doubtful, in our view, whether any alleged threat of exposure of McLeod as a homosexual would cause him to feel the need to resort to perjury. It is equally doubtful whether the alleged statements by the police about the character and conduct of the appellant would have that effect. As regards what transpired during the lunchtime break, there was force in the submission of the Advocate depute that it was not credible that the conversation which he overheard would have been sufficient of itself to cause McLeod to return to court and incriminate an innocent man on a murder charge. McLeod admitted to this court that he did not know if the police officers knew who he was (page 703).
[20]Even if we examine the evidence of McLeod to this court as a whole, we consider that it is clear that there are considerable objections to its credibility. In his affidavit, on the strength of which the court decided to hear his evidence, he gave a detailed account of events, including the statement that following his acquittal he gave statements to both the Crown and the defence "telling the truth - that I did not know Stuart Gair and was not involved with him on 11 April 1989" (paragraph 39). However, the Crown precognition, (Prod 48), which was taken on 23 August 1989 before he gave evidence, shows that he gave an account which was diametrically opposite to that. It was to the same effect as the evidence given by him in the afternoon of the first day and on the following morning. It included an account that the appellant had told McLeod that each of them should deny that he knew the other; and that the appellant had threatened McLeod in prison. Thus there can be no doubt that in swearing to the truth of his affidavit McLeod perjured himself.
[21]The contents of the precognition, which McLeod now claims are lies, are of more than passing interest. In the first place the precognition includes an account of his taking part in planning the mugging of the deceased, having been with the appellant at the bus station, which does not form part of his taped interview with police officers in the early morning of 6 May 1989 (Prod. 45). The Advocate depute correctly pointed out that the precognition was taken at a time when McLeod knew there was no longer any question of his being prosecuted for the murder. In contrast McLeod had said, in regard to his statement to the police, "I was trying to make up a story so they wouldn't connect me to the case". We agree with the submission that the emergence of these details points to the conclusion that this was the truth about McLeod's knowledge and involvement. It is also to be noted that the precognition, followed by McLeod's evidence at the trial, was to the effect that the appellant was wearing white training shoes. At no stage was there any suggestion that this detail was provided to McLeod by the police. We should add that, at the time when McLeod was being precognosced, he was receiving legal advice. There is no suggestion that at that stage he was under any pressure from the police. If it was true that he had been subject to improper pressure by the police, he had ample opportunity to complain about that, or at least maintain the position which he had already adopted in his judicial declaration. However, he did not do so. In these circumstances the contents of precognition, which form the background to the evidence which he did give in support of the Crown case, cast substantial doubt on the truth of his revival of the allegation that his evidence resulted from improper pressure by the police. We should add that we attach no weight to the note made by the precognition officer on 7 August 1989. She was aware that in the taped interview (Prod 45) McLeod had mentioned two men who had not been present (Harkinson and "Charlie"). In any event she was not then aware of the whole evidence which was available to the Crown at the trial, including the precognition of McLeod taken on 23 August 1989.
[22]We should add that McLeod's evidence to this court contains a number of features which are strongly suggestive of deliberate embroidery of the account which he gave on the morning of the first day of the trial. At that time, while denying all knowledge of the appellant and the incident, he did not dispute that he had been in the vicinity of St Vincent Street and Gordon Street on the night of the incident. Now he denies that. At the trial, as we have noted, he said that he had given the police an account of hearing a squeal or commotion and seeing a knife produced before he mentioned the appellant. Now he claims that the police provided him with a story that the appellant had produced a knife, to which he had added an account of running away. He also claims that the police told him to say on tape that there had been three assailants in the lane with the deceased. This would be inconsistent with an attempt by them to fabricate a case against the appellant when other witnesses such as Morrison and Gillon had earlier given statements that only two other persons were involved. It is also hardly credible that McLeod would have been told that he would be allowed to go after he provided a false statement against the appellant. In the taped interview, for which we have the transcript, he did not protest or comment when he was charged with the murder and detained.
[23]As regards McLeod's evidence on the morning of the second day of the trial, it is entirely consistent with his desire to avoid a well-justified charge of perjury. This is not at odds with his own account of what was said to him by his solicitor and the police officers who escorted him back to court. McLeod has given this court no convincing reason for his description of his evidence at that stage as "lies".
[24]An obvious explanation for the way in which McLeod denied the truth of his statement to the police in evidence at the trial is that he was endeavouring to follow the appellant's instruction that each of them should deny knowing the other, and that he was influenced by the appellant's threats to which he alluded even at the same time as making that denial. It cannot be accepted that his reversion to that denial some years after the trial is due to workings of conscience. It is not difficult to envisage this as resulting from his being put under pressure by persons campaigning for the quashing of the appellant's conviction.
The evidence of Brian Morrison
[25]He gave evidence at the trial that he walked from George Square to St Vincent Street. On the way he passed the end of North Court Lane where he saw three men, whom he described as moving from right to left in an inshot in the lane. He then walked to the toilets where he met his friends David Smith and Andrew Learmonth. Along with them he passed by the lane, watching what was happening there. They then walked back to the toilets where he saw two of the men whom he had seen in the lane run down to the toilets from the lane. He saw ambulancemen removing the third man from the toilets. He described the two men as being between 20 and 25 years of age. They were of a similar height (around 5 ft. 10 in.), and they were wearing dark leather jackets. At the trial Morrison identified them as the appellant and McLeod. However, at the identification parade on 18 April, at which the appellant appeared, Morrison picked out a stand-in and not the appellant. He did not pick out McLeod at the identification parade at which he appeared.
[26]In evidence to this court Morrison stated that he met Smith and Learmonth. A man ran out of the toilets shouting for help. The police and an ambulance arrived. He was questioned and taken to a police office. He had seen nothing in the lane or anyone coming from it.
[27]He was referred to a police statement taken from him shortly after midnight by DC James Boyd early in the morning of 12 April (Prod 22), which contained an account of hearing a shout from the lane and seeing an "old guy" standing there with two "young guys", about 25 years old. The old guy shouted "what are you looking down here for?". The two young guys came out of the lane and ran towards him. One of them shouted the name "Morrison" and said: "If you see anything going on, don't open your mouth or else you're gonnae die". They then pushed him to the ground and told him to go away, before running back into the lane. He then walked to the toilets where he met Smith and Learmonth. While he was there the two young guys came running back out of the lane and down into the toilets. When they emerged one of them shouted over to him: "We told you to move". He said that one of the young guys might have been called Ian, who used to drink at a certain public house. He had given him "doings" when he found that that he (Morrison) was gay. A further statement to the same general effect was taken from him by DC Thomas McCrossan on the afternoon of 12 April.
[28]At first Morrison maintained in this court that these details had been given to him by the police, and that what had been attributed to him was a total fabrication by the police (pages 173, 207). However, when he later reappeared in the witness box after an emotional outburst he admitted that this was not true. He claimed that the explanation for his earlier evidence was that he had been upset. He had wanted to get Ian "off his back". People had been talking about something happening in the lane (page 354). "I was getting some trouble in the past and I put together what the police were saying in the street that night and I just thought that I would try and get the person into trouble" (page 356). After some questioning by the Advocate depute Morrison also accepted that it was the case that, as set out in the statement, the police had taken him on a tour of the area shortly after the incident.
[29]Morrison repeatedly claimed that from an early stage that he had been seen by DC Alwyn Harries. However, it is clear that this was not the case. Morrison claimed that Harries did not believe that he had seen nothing, and threatened to have him charged, and to tell his family that he was gay. However, Morrison accepted that he was openly gay and regularly went to public houses and clubs in Glasgow which were known to be frequented by the gay community (page 181).
[30]In regard to the identification parade on 18 April, Morrison agreed that Gillon had given him a lift after it. He denied saying to Gillon on that occasion that he had recognised, but did not pick out, the person at position No 4 (who was the appellant). On 21 April he was brought to the police office from his home by DC Harries and DI Kelly. Morrison disputed the suggestion, based on the evidence of DI Kelly, that in the course of this journey he told them that he had seen on the parade a man who had been in the lane. He added: "That is when I started to get told they did not believe what was going on and that I must have known who was doing it". A further statement was taken from him at the police office by DC McCrossan. In it he was recorded as saying that Smith had told him on the previous night that the police were unhappy with him and that they wanted to see him to go over his statement about the incident. The statement went on to say:
"I have come up here to sort out the matter and I have to tell you that a lot of what I have already told the police is not the truth and I made up some of it to attract attention to myself. I am sorry for all the trouble I've caused. I know I've done wrong but I cannot go on like this pretending I saw things which didn't happen. I have done things like this before to attract attention to myself, and once I started I carried on because I thought I would go to jail and I don't want that. I did come into the town that night and I did hear the shout in the lane. I did see the old guy and the two men I described before but I made up the bit that one of them threatened me and said my name. Once the police started to interview me I had to come up with a name and I said it was the guy Ian who I later picked out by photograph. I said it was him because of all the trouble he has caused me and I knew he always did the poofs up at the toilets. I kept up the pretence to avoid getting into trouble with the police. I did see two people going into the toilet but I don't know if it was the same two men in the lane. The person I picked out of the parade I thought I knew him but I'm not sure. I really am sorry for telling lies and wasting your time. I cannot tell you any more".
Morrison told this court, however, that it was untrue that he heard a shout or saw the men in the lane. He did not appear to dispute that this meant that he had made another attempt to mislead the police officers and waste their time (pages 375-376).
[31]On 2 June 1989 Morrison was interviewed on tape by DC Harries and DC James Smith (Prod 30). He repeated the account of what he had seen and heard which was in his earlier statement. He also said that at the identification parade he recognised one of the men who had been in the lane and had run into the toilets, but he was too scared to say anything. He claimed that he had been threatened. Someone on the parade, who was like a person whom he knew, was looking nervous. That was the person whom he had picked out. But the person he recognised as having been in the lane was "more like No. 4". He had no doubt he was there that night. He had not been telling the truth mainly to get attention. Faced with what he was recorded as saying at the interview Morrison said in this court that "you don't know what I was told before the tape was turned on" (page 386). It was pointed out to Morrison that his Crown precognition (Prod 31) contained the first reference to the fact that the person whom he recognised had been wearing white shoes. He claimed that Harries had given him this information (pages 402-403).
[32]Morrison also claimed that he had been "roughed up" a few times by the police. He was picked up by them every few days before the trial (pages 157, 170). As for Harries, he said, "I didn't get two or three days of peace from him. He kept pumping me with more stuff, what to say" (page 404). At the outset of the trial he told him where the appellant was in the courtroom. He also told him that McLeod was sitting behind the appellant and to his left (despite the fact that in paragraphs 19-20 of his affidavit he said that Harries did not mention McLeod and that his identification of him in court was a "fluke" (page 197)). Morrison accepted that when cross-examined in the trial as to his identification of the appellant he did not admit to any possibility of being wrong (page 417).
[33]Morrison said that about a year after the trial he consulted a solicitor, Leanna Devlin, who wrote to The Scottish Office to complain about the way in which he had been treated by two police officers in April 1989 (page 175). (In fact her letter was dated 14 June 1994 - Prod 32). He explained that he went to her as "it had just been doing my head for years" (page 179). In a precognition enclosed with the letter Morrison alleged that at that time he had been pushed about, held up against a wall by the front of his collar so that his feet were off the ground, and made to stand in the corner of the interview room. The police officers threatened that his family would know he was a "poof", that he would never have a job, that he would never be safe on the streets again, and that the police would pick him up for any little thing. He broke down in tears, and agreed to say anything, including on tape. He was taken to look at photographs. Harries told him not to leave the city until the case was cleared up. He needed a break and so he got a job in Surrey. He started receiving telephone calls from Harries. He was terrified when he was told by him in a telephone call: "Speak the truth, and you can go back to work". After he received his witness citation he returned to Glasgow. The police found out that he was at his mother's house, and he was asked to go to Stewart Street police office to go through the statements again. They wanted him "to keep to the story of picking out the two lads for the murder of Peter Smith".
[34]In evidence to this court Morrison said that he saw Harries as he arrived at Central Station in Glasgow, but he just walked off (page 444). Not long after the complaint to The Scottish Office he saw Harries in Blackpool walking with someone (pages 446-447). According to a file note made by Harries dated 20 April 1999 (Prod 33), in the early hours of the morning two days before, he received a telephone call at Shettleston police office from Morrison in which he claimed that he was being blackmailed about the case, but gave no further details. He stated that he had received numerous threats from persons purporting to represent Harries. He also claimed that when he was in Glasgow for a media interview about the case he was stopped by two persons who alleged that they were police officers representing Harries, and threatened him, telling him to leave Glasgow immediately. Harries stated in the note that he attempted to persuade Morrison to return to Glasgow to relate this information to a member of the staff of the procurator fiscal, but he declined to do so on the ground that he feared for his safety. Harries stated that he was concerned that someone was threatening witnesses on a pretence of representing him, and requested that there should be some form of inquiry into this. When this note was put to Morrison in cross-examination he accepted that he had phoned Harries. This was because he was being harassed and he wanted to know why he was doing it. He recorded the conversation in the hope that Harries would slip up, but he did not do so. However, he did not accept the rest of the note of the conversation: he put down the telephone after Harries asked for his address (page 451).
[35]Thereafter, as a result of a telephone call from him, Morrison was interviewed in Blackpool on 6 July 1999 by P C Anthony Parker of Lancashire Constabulary. According to his note (Prod 35), Morrison complained of having been forced into giving evidence against the appellant by beatings and threats to tell his parents about his homosexuality. He admitted that he had lied at the trial. He thought that a man who befriended him had been sent to find out about him. P C Parker spoke to the man and did not consider that there was anything sinister in their meeting. Morrison also alleged that Harries had threatened him in Blackpool two months before that if he gave evidence to the appeal court he would "get his legs blown off". Morrison also claimed that Harries had threatened him on other occasions by telephone. Morrison accepted that the note by PC Parker was accurate (page 456), despite having said earlier that he had only once seen Harries in Blackpool, that is to say when he was walking with someone else (page 446).
[36]On 27 July 1999 DI Alistair Wallbanks of Strathclyde police took a witness statement from Morrison (Prod 37). In his statement he repeated his allegation that he had been intimidated by the police. He claimed that from the outset he had been seen by Harries. He stated that when he returned to Glasgow for the trial Harries was waiting for him at Central Station. He was very pleasant and asked him about his journey and whether he remembered what he was to say. At the court Harries showed him a photograph of the appellant as the person he had to pick out. He would be sitting between two police officers, and the other one would be behind him and to the left. He claimed that after a television programme about the case he had been threatened in Blackpool by two men, one of whom told him to keep his mouth shut about the case, as he was saying too much. He received a similar threat in Aylesbury. Morrison also stated that since meeting Harries at court he had had no contact with him other than the night when he telephoned him at Shettleston police office.
[37]Morrison said that he was the first person to come forward and claim that the police had prevailed on him to commit perjury (page 424). He accepted in this court, however, that he had not acted until there had been publicity in a magazine article which mentioned McLeod (pages 477-478).
[38]Mr Jackson submitted that there were number of reasons why Morrison should be accepted as reliable and credible. He presented as a weak, and, at that time, a very vulnerable person. The threat of being exposed was very frightening and real. He maintained that his family did not know that he was gay. He had made a complaint to the police about what had happened. It was totally understandable that he did not tell the truth to the Crown or the defence. Mr Jackson accepted that in other respects his evidence was not entirely satisfactory. It was often confusing and contradictory. It was also not satisfactory as to why he was able to give details about events which he did not hear at all. Mr Jackson accepted that it would be difficult to found an appeal on the evidence of Morrison if it stood alone. He was adamant that he did not see the appellant at the locus. He was adamant about the threat and improper pressure to which he had been subject. It was clear that he had had, and still had, mental health problems, but on all essentials he remained entirely credible. Why would he now take up the position of giving perjured evidence?
[39]It is clear that Morrison committed perjury during at least one passage of his evidence before this court. He retracted his allegation that the police officers who took his first two statements (on the night of the incident and the following day) had told him what to say. He accused DC Harries of having ill treated him from the outset. However, it is plainly untrue that DC Harries was involved in interviewing him prior to 2 June 1989.
[40]Morrison gave evidence that in order to have him identify the appellant, police officers threatened to make known his homosexuality to his parents. However, as the Advocate depute pointed out, his lifestyle was such that there appears to be little in such a threat, even if one takes into account that in 1989 attitudes to homosexuals were different from those today. In any event it does not appear that the threat was carried out after he failed to identify the appellant at the identification parade. There is evidence from Gillon in his police statement (Prod 2) and his evidence to this court that Morrison admitted to him that he had seen one of the assailants at position No 4 at the identification parade on 18 April. This was followed by the taking of a statement from Morrison on 21 April, as we have narrated earlier. In the circumstances we do not to consider that Morrison's denial of having recognised the appellant at the parade rings true. This undermines his claim that his identification of the appellant at the trial was due to the actions of Harries. His claim that Harries told him how to pick out McLeod at the trial is in flat contradiction with his sworn statement in his affidavit.
[41]The Advocate depute also pointed out that the accounts which he gave to Leanna Devlin, PC Parker and DI Wallbanks, and which we have outlined above do not square either with each other or with the evidence which he gave to this court or in his affidavit. His account of being harassed in England at the instance of DC Harries is bizarre and wholly lacking in credibility. There was force in the submission of the Advocate depute that the evidence now offered should be seen in the light of the fact that Morrison was, on his own admission, an attention-seeker and mentally unstable. It was also of significance that he was seeking compensation for his alleged ill-treatment at the hands of the police. He was, in our view a very unimpressive and unstable witness.
The evidence of Alan John Gillon
[42]He gave evidence at the trial that after returning to his car which he had parked in St Vincent Place his attention had been attracted by two men who were walking round the block at St Vincent Street. He described the two men, one of whom was wearing white training shoes. He took an interest in their movements to and from the lane. He saw the man with the white shoes standing in the lane over what he thought was a bundle on the ground. The other man had his back to him and was stooped over the bundle, which the witness then realised was a body lying on the ground. The man with white shoes ran up the lane towards him, while the other man ran in the opposite direction. The latter man was taller than the other. He described both men as being around 20-25 years old. The first man was wearing a black leather jacket, denims and white training shoes. He could not describe the second man in any detail. At the identification parade on 19 April he picked out the appellant as the man who was wearing white training shoes. He also identified the appellant when he gave evidence.
[43]In this court Gillon gave evidence that on the evening of the incident he had parked his car in St Vincent Place opposite the lane. After he returned to his car at about 10:40 p.m. he saw a bundle lying in the lane near a public house. Somebody was walking in the lane away from it and St Vincent Place. It appeared to him as if somebody had been attacked in the lane. Someone else walked along the lane towards St Vincent Place. He was unclear as to whether he saw the bundle being struck, unlike paragraph 6 of his affidavit in which he spoke of a man standing beside the bundle and bringing down something on it with a heavy blow. (He claimed that his account of the bundle being struck came from a "report" which he had read (page 127)). Thereafter he drove away. The following day he read a newspaper report about the incident and a police appeal for witnesses, and went to the police.
[44]On 14 April 1989 a statement was taken from him by DC Harries and another police officer (Prod 1), in which he described two men, one of whom had brilliant white trainers, going round and round the lane. On the following day he was shown a selection of photographs at Stewart Street police office. According to his police statement (part of Prod 1), he identified the appellant by his photograph, as being the man who had been wearing the white shoes. However, he gave evidence to this court that, when he was unable to pick any one out, DC Harries pointed to the appellant's photograph saying "that's the one". Gillon told this court that he had always been brought up to agree with the police "so I just took it on" (page 27). At the identification parade on 18 April he picked out the appellant, he said, as he had a strong resemblance to the person in the photograph. He claimed that he had never seen the appellant in his life before. On the following day at the request of the police he returned to Stewart Street police office. He told DC Harries about his conversation with Morrison when he gave him and Smith a lift after the parade. They told him that they had picked out the wrong person. He thought they gave the number of the person whom they recognised, but did not recollect if it was No. 4, although that was recorded in an addition to his police statement (Prod 1), which he accepted as accurate (page 78). Gillon gave evidence to this court that he then said to DC Harries and his colleague that the appellant was not the person whom he had seen in the lane: he only resembled him in height and the colour of his hair. DC Harries said that he could not change his statement, and told him that, if he said that he did not know the appellant, he (Harries) would tell his parents, and possibly his employers, that he was gay (as he was, although not openly, he said). This threat worried him very much (page 34). He could not recall how he responded to it (page 36). In cross-examination he said that he could not remember what the police officer said, and agreed that it was probable that he was told in forceful terms that he was not permitted to amend his statement (page 47). He accepted that he said to the Crown precognition officer that he confirmed his police statement (page 37). He thought that DC Harries spoke to him at the court and told him that the person whom he should identify would be sitting between two policemen. The threat was not repeated: it was "still hanging there" (page 39). He accepted that at the trial had had given a robust explanation of why he was not in error in his identification of the appellant, and of the opportunities which he had to make a proper identification (page 99).
[45]Gillon denied the suggestion that he had been more willing to assist the police after he knew that the deceased had died on 29 April 1989. It was pointed out to him that when giving his first statement to the police (Prod 1), he did not mention a bundle, the use of a stick and the two men going in different directions. He accepted that he had not said all that he knew. In that statement he said that he was not gay and did not realise that St Vincent Place was a haunt of homosexuals (pages 73-74). He accepted that on 15 April he gave a description of the height, hair and clothing (including the brilliant white trainers) of the man whose photograph he claimed had been pointed out to him (page 72). Gillon was referred to the fact that on 9 May 1989 he gave a further statement to DC Harries (Prod 4). He accepted that there was nothing untrue in the statement (page 87). He said that there were a number of things that he had not told him about "because I was terrified... It has been playing on my mind especially when the guy died". He then went on to give an account of seeing the bundle, and the man with the white shoes running up the lane and into St Vincent Place and to the toilets. He was recorded as saying that he was positive that the man with the white shoes was the man whom he picked out from the photograph and at the identification parade. However, his position now was that he claimed that he picked out the photograph of the appellant because he was told to do so (page 130).
[46]Gillon said that as a result of his experience in the case he suffered stress and asthma. He agreed that some time after the appellant's conviction he became aware of a campaign publicising the claim that there had been a miscarriage of justice, which was the subject of television reports and programmes, and that he declined to take part. He said that "there was a bombardment of television companies and various magazines" (page 107)
[47]He agreed that he was approached by a campaigner, Mr Kennedy. He also received a letter from Dr J McGregor dated 5 February 1997 (Prod 68), in which the writer stated that three of the four witnesses who had given identification evidence against the appellant had now independently of their own free will stated that they had lied in court; that he understood the background to Gillon's evidence against the appellant and the anxiety he had about this; and that he believed that it would be in his interests and those of the appellant for him to contact the appellant's solicitor either personally or through his own solicitor. He added: "The injustice done to Stuart Gair is horrendous" (page 105-6). Up to then Gillon had said nothing to anyone officially that he had done other than tell the truth in court (page 107). As a result of the letter he went two days later to Stewart Street police office where he was seen by Detective Inspector Bryan Adams. Gillon expressed concern to him that the inference of the letter was that he and other witnesses had given perjured evidence. He was adamant that he had had been truthful throughout the case (Prod 7). He firmly believed that the appellant was guilty. He did not want to be further pestered by journalists or "do gooders" (Prod 8). DI Adams suggested to him that if he received any more letters he should contact him. Thereafter Gillon contacted him on a number of occasions. He did not make any allegation against DC Harries or indicate that his evidence had been anything other than the truth (pages 111-113). Gillon claimed that he told DI Adams that he had told the truth at the trial because his colleague was another police officer (page 122). "I suppose I didn't know whether the police would get back at me or whatever" (page 135). He did not recall saying in 1998 to a writer for "The Big Issue" magazine that he was adamant that his evidence at the trial was accurate and was not due to pressure to conform to the police version of events (pages 101-104). Gillon also received correspondence from the appellant himself (page 117). The first time he made a statement about the way in which he was treated by the police was when he provided information to the appellant's solicitor in connection with the preparation of his affidavit in 2000 (page 120). Cross- examined by the Advocate depute in this court he accepted that he had been fearful or apprehensive of being the one person who was left identifying the appellant (page 121). In re-examination and said that he decided to do so because he had read that other witnesses had taken the step forward to do so - "it showed that I wasn't alone in what was happening" (page 136). "If they were willing to do it I didn't see why I should sit back, knowing fine well it had happened to me" (page 137).
[48]Mr Jackson submitted that Gillon's account of why he had given false evidence at the trial should be accepted as credible and reliable. He was clearly a weak, vulnerable and easily frightened individual, as could be seen from his demeanour. He was not in a sense a strong individual, but was the sort of person to trust the police, having been brought up to do so. He believed the police when they told him of the appellant's criminal involvement, and he did not think he was punishing an innocent person. As regards the threat of exposure it had to be borne in mind that in 1989 this was a much more serious matter. He had no real connection to McLeod and Morrison. The fact that he did not tell the truth to the procurator fiscal was in keeping with his personality and general behaviour over the years. He had been unable to go against the authority of the police as he saw it. It was only when he realised that he was not alone that he had had the courage to speak out. There was no reason why he would now perjure himself.
[49]The evidence of Gillon presents a number of problems. In the first place the only occasion on which, according to him, the police put him under pressure was after he had picked out the appellant at the identification parade on 19 April 1989. As we have already noted, he accepted that he may simply have been told by police officers in forceful terms that he could not withdraw his identification of the appellant the day before. There is, moreover, a credible reason why he might want to retract his identification. It was that he did not want to be the only person who identified the appellant. Pressed with that in cross-examination he merely said: "I can't remember". He accepted that he was scared by what he had got involved in (page 64). It is clear from the statement which he later gave to the police on 9 May that he was then volunteering information which he had been withholding from them at an earlier stage when the deceased was still alive. This conflicts with his claim that his identification of the appellant was due to improper police conduct. It may also be noted that, according to his affidavit (paragraph 23), the photograph which DC Harries showed to him bore a strong resemblance to the man who had been hitting the victim in the lane. It is also doubtful whether there could have been any real substance in the "threat" to Gillon to expose him to his parents as a homosexual. According to him his parents still do not know of his homosexuality. There was some evidence that he was acquainted with Morrison before the fatal incident. He initially said that he had no connection with Morrison (page 43). Then, in cross-examination, he accepted that he had met Morrison before through a mutual friend, probably in one of the pubs frequented by gays (page 59). Morrison himself said that he had known Gillon for months, possibly a year (page 201).
[50]In the second place, Gillon's long adherence to his evidence of identification of the appellant, and the circumstances in which he ultimately reneged on that evidence, are striking. At the trial he defended his identification in a robust manner. He had ample opportunity to complain to other police officers or the procurator fiscal if it was true that he had been mistreated by the police. As it turned out, he later complained to the police about the activities of campaigners who were pestering him and suggesting that he had given false evidence of identification. It was only after he found himself in the position of being the sole witness who was holding to his identification of the appellant that he reneged on it. This suggests a repetition of the attitude which he adopted after he discovered that he was the only person who had identified the appellant at the identification parade on 19 April 1989. However, in this case there was also the pressure of the campaign, not to mention correspondence from the appellant, and his own health problems.
The evidence of Hector McLeod Wood
[51]As the court noted in its Opinion of 26 February 2003 at paragraph [4], his evidence is relied on to support the explanation why the other witnesses did not give at the trial the evidence which they have given to this court. So considered his evidence might have a bearing on their credibility and reliability.
[52]Wood stated in evidence that the appellant could not have been at the locus as he was with him in the hostel where they lived. He was interviewed by the police, and identified DC Harries as the police officer who was involved. He was asked repeatedly if he was gay. He felt intimidated. He was offered the inducement of having an outstanding fine "wiped clean" in return for his saying what the police wanted him to say. He refused to co-operate. One of the police officers told the other not to behave like that. He was later arrested on account of the outstanding fine. He was immediately spoken to by DC Harries who was obviously "orchestrating" matters. He refused to co-operate.
[53]Mr Jackson accepted that in cross-examination Wood admitted a number of previous convictions. He did not remember a number of things, including giving a statement to the procurator fiscal. Mr Jackson accepted that it was possible that he was mistaken in some respects. However, what mattered was that he confirmed the type of conduct on the part of the police to which other witnesses spoke. He was different from the other, vulnerable, witnesses. He was an acoustics engineer. He did not give in to improper pressure, although it was less intense in his case. No motive had been suggested for his evidence about police pressure. There was no connection between him and the appellant.
[54]The Advocate depute maintained that Wood's account of police pressure was not credible, given the fact that he had not told the Crown or the defence about that. Further, in his original police statement (Prod 49), and his subsequent precognition (Prods 50 and 51) he did not provide the appellant with an alibi for the relevant time. He denied giving a precognition to the Crown (pages 304-306). He stated in his affidavit (paragraph 62) and in his evidence (page 303) that he had told the appellant's trial solicitor about conduct of the police, but this was denied by the solicitor in his written comments (pages 48 and 52). Moreover, at no time did the appellant mention being in the company of Wood. Wood's evidence contradicted the evidence of the witnesses who had given evidence at the trial. He also initially denied having previous convictions for dishonesty. However, he thereafter conceded that he had been convicted of housebreaking (page 300-301).
The additional ground of appeal
[55]At the trial PC Marnock gave evidence that while on her way with PC Fulton (who has since died) to the area in which the incident has occurred she was informed that two men, described as wearing leather jackets, were being sought in connection with it. Shortly before this she had seen two men going along Gordon Street. At an identification parade on the 28 April 1989 she picked out the appellant, stating: "Looks very like the guy at No.4" (Prod 70 at page 362). She did not admit to any doubt as to her identification in court of the appellant as one of the men. She also identified McLeod as the other. PC Fulton gave similar evidence, but he was unable to identify McLeod in court.
[56]The ground of appeal is based on the fact that in a statement written by her soon after seeing the men (Prod 65), which was among a number of statements handed over to the appellant's solicitor on 11 May 2004, she had described the men as "5'10''/11''" and "5'8''" tall, apparently referring to the appellant and McLeod respectively. However, at parades on various dates in April and May 1989 the appellant's height was recorded as 6'0'' or 6'1'' and that of McLeod as 6'1''. At the parade on 18 April the issue of height formed an objection by the appellant and his solicitor, which was rejected by the officer conducting it. It is maintained that neither of the appellant and McLeod could possibly have been either of the men. The evidence of identification given by these two police officers in regard to the appellant was so markedly different from their original account as to be irreconcilable.
[57]Mr Jackson submitted that in her evidence to this court she had no real recollection of events; her evidence was based more or less on documents. She did not find anything remarkable in the discrepancy between the information which she provided to her colleagues immediately after the incident and the evidence she gave at the trial. The statement was significant new evidence. Had it been available at the trial it would, without question, have cast the most serious doubt on the identification of the appellant made by PC Marnock and her colleague. It would also have cast the most serious doubt on McLeod having been near the locus.
[58]The Advocate depute pointed out, on the other hand, that the information provided by PC Marnock had enabled an e-fit picture to be produced, as a result of which McLeod was asked by a police constable on beat duty to go to Stewart Street police office. At an identification parade she picked out the appellant and McLeod. It should be borne in mind that in his original statement (Prod 47) and his evidence on the morning of the first day of the trial McLeod admitted that he had been at the locus and jogged in the area. He agreed, both at the trial (page 60) and in this court (page 660) that the e-fit picture resembled him. The original statement of PC Marnock gave full details of height. At the trial her evidence of identification must have been challenged.
Decision
[59]The credibility and reliability of the evidence given to this court by McLeod, Morrison and Gillon as to how they came to give evidence at the trial identifying the appellant and, in the case of McLeod, describing being in the lane with the appellant at the time of the stabbing, are, in our view, suspect, for the reasons which we have given earlier in this opinion. That is so whether each of these witnesses is considered on his own or with any support which may be provided by any of the others, or for that matter, by Wood.
[60]There was a stage in the history of this appeal in which it appeared to be suggested that there had been concerted action on the part of police officers, organised by DC Harries, to obtain evidence of identification and of the appellant's presence in the lane by means of threats, and that this might have given support to the evidence of the individual witnesses in this court. However, scrutiny of the evidence does not bear this out. There is no connecting link in the evidence pointing to such action. We note that DC Harries did not interview McLeod, nor, despite his repeated assertions to the contrary, Morrison prior to 26 June 1989. The evidence of Wood is far from satisfactory because of the questions which it raises. It is not in any event capable of providing support for the type of allegation made by the other witnesses. A number of features of the evidence point away from such concerted action. The first is the inclusion in a witness's evidence of details which are inconsistent with such a theory. One example is McLeod's introduction of a third man in the lane. The second is the appearance in the statement of a witness of details not said to have been introduced by the police. An example is the reference to the white shoes worn by one of the men who, according to the Crown case, was the appellant. We should add that DC Harries denied any impropriety, as did the other police officers who gave evidence before us, but for present purposes we do not rely on their denials.
[61]As we have narrated, Mr Jackson repeatedly stressed that McLeod, Morrison and Gillon had no motive to commit perjury before this court. It is, however, plain that each of these witnesses has been subject to pressure to exonerate the appellant. In the case of McLeod that began before the trial.
[62]We have concluded that the evidence of McLeod, Morrison and Gillon, in which they reneged on evidence which they gave at the trial, is not capable, whether viewed individually or cumulatively, of being regarded by a reasonable jury as either credible or reliable.
[63]In these circumstances we do not require to go on to the other tests which their evidence would require to satisfy, as we pointed out earlier in this opinion. We should perhaps say that we very much doubt whether the evidence of McLeod to this court could be described, in any material sense, as "different from or additional" to evidence which he gave at the trial.
[64]We are also not persuaded that what was reported by PC Marnock shortly after the incident is, in the words of Lord Justice General Emslie in Cameron v H.M. Advocate 1991 J.C.251 at page 262, "likely to have had a material bearing on, or a material part to play in a reasonable jury's determination of a critical issue at the trial".
[65]Accordingly we reject the grounds of appeal with which this opinion is concerned. The appeal will be continued for hearing on the remaining grounds of appeal.