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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Abernethy

Lady Paton

[2007] HCJAC 48

Appeal No. XC 464/03

OPINION OF THE LORD JUSTICE CLERK

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

RAYMOND McKENZIE GILMOUR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the Appellant: Shead, Miss Mitchell; Drummond Miller LLP (for Gordon Ritchie & Co, Paisley)

For the Crown: Miss Grahame, AD; Crown Agent

30 August 2007

I INTRODUCTION

[1] This is a referral by the Scottish Criminal Cases Review Commission (the Commission). It relates to the conviction of the appellant at Glasgow High Court on 7 June 1982 on the following charge:

"On 4 November 1981 in Rannoch Woods, Johnstone, you did assault [XY], aged 16 years ... and did seize her, knock her to the ground, place your hand over her mouth, strike her on the head with a piece of wood, drag her into bushes, tie a ligature round her neck, tear her clothing, pull down her tights and pants, lie on top of her and rape her, strangle her and you did murder her."

[2] The appellant appealed against the conviction on the grounds of insufficiency of evidence and misdirection. On 17 December 1982 the court refused the appeal (cf Gilmour v HM Adv, 1982 SCCR 590). In January 1993 and in November 1994 respectively the appellant unsuccessfully petitioned the Secretary of State to refer the case to this court under section 263 of the Criminal Procedure (Scotland) Act 1975.

II THE MURDER, THE INVESTIGATION AND THE TRIAL

The murder and the post mortem findings

[3] The deceased was raped and killed in the afternoon of Wednesday 4 November 1981 when she was walking home from school through Rannoch Wood. She was strangled with a length of rough twine that was wound round her neck three times.

[4] On 5 November 1981 Dr Walter P Weir and Dr WDS McLay carried out a post mortem. Their findings were set out in their Report dated 10 November 1981. The substance of the Report occupies just over one side of A4. They found that three strands of twine tightly encircled the neck. The deceased was bleeding from the vulva, the hymen was torn and there were some bruises of the hymen and the labia minora. There were abrasions on the front of the left knee and a few scratches on the outer aspect of the right ankle.

[5] The following injuries were found on the deceased's hands.

"On the flexor surface of the proximal segment of the right index finger there was a superficial incised wound. A tiny flap of skin had been raised from the corresponding part of the little finger. There were tiny parchmented abrasions on the back of the index and middle fingers of the right hand. There was a small cut on the medial side of the middle segment of the left finger. There was a linear abrasion of the lateral side of the finger and another similar abrasion at the base of the finger."

[6] There was a one-inch scratch in the frontal part of the scalp, some blotchy haemorrhage had occurred into the scalp at the vertex and there was some bleeding into the left petrous bone. The post mortem photographs do not show any of the scalp injuries. The brain was uninjured. The cause of death was asphyxia due to compression of the neck.

[7] The Report attaches no significance to the cuts on the deceased's fingers.

The police investigation

Initial enquiries

[8] The appellant was aged 19 at the time. He was shy, inadequate and sexually disturbed. He lived near the Wood and frequented it for the purpose of masturbating and exposing himself. On Saturday 7 November 1981 he attended Johnstone police office in connection with reports of indecent exposures. He admitted that he had indecently exposed himself on Tuesday 3 November. He said that he had been at home throughout the afternoon of Wednesday 4 November. The police went to his home and from his bedroom recovered a large number of pornographic magazines and some items of clothing.

[9] Pornographic magazines were found at the locus. They were similar in nature to those found in the appellant's bedroom. Pornographic notes in the appellant's handwriting were also found in the Wood.

[10] On 7 November 1981, DCI William McMath examined the appellant's hands and face for scratch marks. The only feature of any significance that he found was a small wound on the appellant's right forearm.

[11] On Sunday 8 November the appellant took part in an identification parade that was viewed by two women who had reported that they had seen a "flasher" in the Wood. Neither identified the appellant. The appellant then told a police officer that he had been in the Wood on the afternoon of 4 November.

[12] On the same day Dr McLay examined the appellant's hands with particular care for any sign of frictional burning such as would be caused by pulling tightly on rough twine, but could find no such sign. In his report of the examination dated 29 December 1981 Dr McLay said that the appellant's hands were uninjured.

The first confession

[13] In the morning of Monday 9 November the appellant appeared on petition at Paisley sheriff court on a charge of indecent exposure and was remanded in custody.

[14] At about 1.40 pm at Paisley police office he was interviewed about the murder by D Supt James Brown in the presence of DS Mair and DC Alexander Love. At 2.50 pm D Supt Brown terminated the interview. He instructed DS Mair and DC Love to take the appellant back to his cell. When the appellant was on his way to the cell, according to DS Mair, he started to cry and became emotional. He said "I can't go on like this, I'll have to talk." DS Mair said that he asked the appellant if he was referring to the murder. He nodded his head several times. Before this, DS Mair had advised the appellant that he had better ask for special protection from the prison staff as the other prisoners would be likely to beat him up when they learned what he was charged with. DS Mair said that he cautioned the appellant. He asked him if he wished to return to the interview room. The appellant said that he did. On his way to the room he continued to sob.

[15] When the appellant returned to the room, according to the police evidence, he made a statement, which was noted at the time by DS Mair as follows:

"I went down the path leading from corner of Willow Drive, and Tower Road leading down to Rannoch Road through the wood this would be about 3.30 pm. I knew the school didn't come out till 4 pm so there wouldn't be anyone in the area till about 4.10 pm to 4.30 pm. I was in a more bushy area than the trees. There was a big sort of fat tree a bit further back on the path. It was the only tree that sort of protruded. I was about 30 feet further along from the tree. I was masturbating as I didn't expect anyone to appear there or arrive. I think the next thing I realised was a girl whom I recognised but didn't know her name. I jumped at her because I thought she knew me. I knocked her down and fell on top of her. She was screaming and shouting. I tried to quieten her I put my hands over her mouth. She kept shouting. I picked up a piece of a branch lying on the ground and I hit her with it. I tried to have sex with her but I didn't manage properly. I remember pulling at her tie or the strap of her bag or something slim, a belt or something. She calmed down quite a lot. I held the thing on her neck for a length of time but I couldn't be specific. I got up and left her. The struggle had moved us about and she was lying about 10 to 12 feet in the light bush off the path to the right side off it from the Willow Drive end or if you like on the lower part of it. I wandered through the woods a bit I didn't go straight home. I went home about 4 pm. If I can get the help I need to get rid of this feeling I'll be glad. I mean that girl had a long life to live if I hadn't ended it. I'm sorry about it."

The appellant also drew a sketch map of the area on which he marked the spot where he said that he had attacked the deceased.

[16] At about 5 pm the appellant was questioned about this confession by D Supt Brown and DCI McMath. He answered their questions as follows:

Where did he leave the body?

"About thirty feet from the path. I think she was in view of the path, just where she landed when I jumped her."

Her clothing

"She was wearing her school uniform and tie."

Description of the uniform

"Black blazer and grey skirt."

Could he describe her underclothes?

"No."

What was on her legs?

"White socks."

What kind of shoes?

"Black shoes."

Describe the piece of wood with which he struck her

"I don't know"

How long, short, thick or thin was the wood?

"I can't say about the length. It was a thick branch, about two feet long. I could hardly get my hand round it. I hit her three or four times on the head with it."

What did he put around her neck?

"It was her tie or the strap of her bag."

D Supt Brown asked the appellant if he was telling the truth. He said "I didn't kill the girl. I only made it up to please the other police." It was assumed that he was referring to DS Mair and DC Love. D Supt Brown asked him to explain what he meant. He replied "I couldn't take any more questioning." Both D Supt Brown and DCI McMath concluded that he had lied when he confessed to the murder. D Supt Brown decided to release him.

[17] All of this was reported by the procurator fiscal to Crown Office in a report dated 21 December 1981 (infra).

The change of the enquiry team

[18] In January 1982 the appellant remained the prime suspect. There was continuing press interest. On 25 January 1982 it was decided to take D Supt Brown off the case and to replace him with D Supt Charles Craig. D Supt Craig brought in a new team of officers, but retained DS Mair. D Supt Craig soon obtained a confession from the appellant.

The second confession

[19] On 9 February 1982 the appellant was in custody in Longriggend Remand Unit awaiting sentence on the indecent exposure charge. He was to be taken to Paisley sheriff court that day for sentence. He was not conveyed to court by normal prison transport. Instead, at 7 am DI John Corrie and DS John Blair, on D Supt Craig's instructions, collected him from Longriggend in a police car and took him to Paisley police office. DI Corrie's notebook records "to Longriggend Remand Unit to convey Raymond Gilmour (19) ... to Paisley Sheriff Court." DS Blair's notebook records "Uplift Raymond Gilmour from Longriggend to Paisley PO."

[20] In the course of the journey, according to these officers, the appellant raised the question of the murder. He was noted as having said

"If I go through the court today will they still want to see me about the [XY] murder?

DI Corrie asked him what he meant. He replied -

"It's about the statement I made about the murder when I admitted it because I have never been charged or anything."

[21] At about 9.10 am DI Corrie and DS Blair brought him to the conference room at Paisley police office where D Supt Craig interviewed him in the presence of DS Mair and themselves. At the outset, D Supt Craig asked the appellant if he remembered DS Mair. The appellant nodded in reply.

[22] At this interview the appellant was shown the sketch map that he had drawn on 9 November. He then made the second confession. It was noted by D Supt Craig as follows:

"I was masturbating when [XY] came along that path - Pt to R [sc Rannoch] Road. I don't know why I did it. She was screaming help and I put my hand (shows left palm) over her mouth. We were on the ground near the bushes. I had to keep her quiet and I think I pulled her tie or belt from her bag tight round her neck. I tried to have sex but as I stated I had been masturbating earlier and couldn't - I did not want my mother to know I had done it as she has had a hard time with my behaviour and I don't know if you know my father was the same as me and she is heart broken. This will kill her."

When asked where he went after the murder, he continued -

"I stayed there for a wee while. I tore her tights and pulled her pants down to her knees (points left shin). I tore her blouse I think that was after I strangled her. I ran away and can't recall much more."

[23] The appellant was then taken to Paisley sheriff court, where he had his first opportunity to speak to his solicitor. After being sentenced, he was returned to Paisley police office where he was charged with the rape and the murder.

[24] On the following day the appellant appeared on petition at Paisley sheriff court. He underwent a judicial examination in the course of which he said that he had been at home on the afternoon in question (Trial Judge's charge, p 71). He told his solicitor that he had falsely confessed to the murder on the previous day.

The evidence at the trial

[25] There is no transcript of the trial, but the main lines of evidence and the evidential issues are set out in the detailed charge of the trial judge, Lord Dunpark. The Crown case was based on the evidence of the confessions, which were alleged to disclose special knowledge, the evidence of the pathologists and the evidence of the pornographic magazines found at the appellant's house and at the locus.

[26] Both of the pathologists gave evidence. The trial judge mentioned the following significant points in their evidence when he was dealing with the first confession.

"'I picked up a piece of a branch lying on the ground and I hit her with it.' Well, is that consistent with the medical evidence, ladies and gentlemen? You have got the evidence of Dr Weir, which I'll just remind you of very briefly. 'Was it just possible that this blow could have rendered her unconscious?' that is a blow on the head. 'I would expect to find more signs of injury if she had been struck several blows on the head with a thick branch. There was no sign of the girl having been struck with that frequency.' And of course he only says in the first Production, 'I hit her with a piece of a branch.' but in his later interrogation by Superintendent Brown he said 'three or four times with a thick branch I could hardly get my hand round.' That is a discrepancy. But Dr McLay's evidence -- when asked about the head injuries he said, 'They could have been caused in a variety of ways -- contact with the ground, or trees, or could have been struck over the head. It is certainly possible they could have led to unconsciousness.' Then he is shown the production Label 38 and he says, 'That could have caused either or both of the head injuries. Probably more than one blow.' So is 'hit her with a branch once, or three or four times' or whatever you think he may have said -- is that consistent with the medical evidence?

Remember the accused said that he had read that she had been struck with a blunt instrument, and there is no doubt that the papers, the defence productions, refer to her having been struck with a blunt instrument. Well, is that the reason why the accused picked a bit of a branch to strike her with, or is that what really happened? It is a matter for you" (Charge, pp 55-57).

Label 38 to which the trial judge referred was labelled as "Branch of tree." The "papers" to which the judge referred were copies of the Evening Times for 5 and 6 November 1981 containing reports of the police investigation into the murder.

[27] Although we do not have a record of D Supt Brown's evidence, it is clear that he said that he decided that the appellant had made up the first confession and the sketch to please the police officers and, because of that and because of the discrepancies between the appellant's version and the true facts, he released him without having charged him. The trial judge summarised the matter as follows.

"Now, Superintendent Brown, you may remember, decided that with the accused's statement to him that the Mair statement was made up and the sketch was made up to please the other police, and the discrepancy between the true facts and the accused's version in answer to his questions - Brown decided he didn't have enough evidence to charge the accused. Other colleagues disagreed. You may think it was a knife-edge situation. Now, if Superintendent Brown charged the accused then he could ask him no more questions. Once a man is cautioned and charged, if he is questioned thereafter, his answers are not likely to be admitted in evidence against him if they are incriminating. So as the accused had told Detective Superintendent Brown that the statement was made up, Brown might have been putting an inadequate - he thought - an inadequate, innocent youth through the ordeal of imprisonment up to trial and a trial in which Brown thought he would not be convicted, so he decided to let him go - for the time being, ladies and gentlemen, because obviously if further evidence became available Superintendent Brown knew he could arrest the accused and charge him with this murder" (Charge, pp 37-38).

[28] The police explanation for the Longriggend episode was that D Supt Craig wished to interview the appellant to satisfy himself as to whether the first confession and the sketch had been made up. The appellant at that time was in "protective custody" and, since he was to come to court that day in any event, D Supt Craig instructed DI Corrie and DS Blair to bring him from Longriggend to Paisley for the combined purposes of being interviewed and appearing at the sheriff court.

[29] DI Corrie and DS Blair said that when they were en route to Paisley , the appellant made the second confession in the words that I have quoted. They then stopped the car to enable DI Corrie to note the confession in his notebook. DS Blair noted it later.

[30] The appellant gave evidence. He said that on the occasion of the first confession, he was punched and kicked by DS Mair and DC Love in the lift and in the cell and that he then admitted the murder. He said that when he returned to the interview room, DS Mair got a pen and paper and asked him to repeat what he had said downstairs. He admitted that he had made the first confession, but said that violence and threats of violence were used by the police officers to make him give the confession that they wanted. He said that he had made the sketch map on the basis of his observations of an area that the police had been guarding after the murder.

[31] The appellant said that on the date of the second confession, on the journey to Paisley police station, the car was stopped in a layby before he said anything about his earlier statement. At that point, DI Corrie accused him of the murder, threatened him with violence and said that he was lying when he said that DS Mair had punched him. In his evidence DI Corrie denied that the appellant had told him that DS Mair had punched him.

[32] The appellant denied that he had admitted in the second confession that he had torn articles of the deceased's clothing and had pulled her pants down. The trial judge's account of the appellant's evidence on the point was as follows:

"'I wasn't cautioned. I was accused of murder and I denied all knowledge of it, and I was called a liar. Craig said he would kick me up and down the room.' The accused said he told them originally the confession wasn't true, and he was called a liar, and 'Craig said I got the string from the bin at the garage'; and that sexual aids were mentioned, and he was asked whether his brother was a pervert, and his mother had married a pervert, and his mother was shielding him. At that point he said, 'I had had enough and I thereafter admitted saying some of the things noted by Craig - not all, some of them.'" (Charge, pp 45-46).

The trial judge's charge

[33] The trial judge directed the jury as to the admissibility of confession statements that were made freely and voluntarily (Charge, pp 17-22; 27-28). He directed them that if the evidence of the first confession and the sketch was inadmissible, the evidence of the second confession was inadmissible too. Therefore, if they considered that the appellant did not make the first confession or give the sketch freely and voluntarily, they must acquit (pp 22-23; 25; 27-28). That question depended on the evidence of DS Mair and DC Love as against that of the appellant (pp 25-26).

[34] The trial judge dealt with the question of the fairness of the second confession in the following way:

"All the suspects had been eliminated, we know, except the accused. Detective Superintendent Craig couldn't just write off this murder as unsolved without interviewing the prime suspect.

So he sent Detective Inspector Corrie and Detective Sergeant Blair to bring the accused to Paisley, for two purposes. He had to appear in the sheriff court anyway, but also for interview by him.

Now, without going into the circumstances which [senior counsel for the defence] explored in cross-examination and in his speech, I direct you that there was nothing unfair in fact that the accused was brought to Detective Superintendent Craig for interview while in custody for other offences, without being told in advance that he was to be interviewed and with no right to refuse to be interviewed. If you thought that [senior counsel for the defence] was suggesting to you that these three factors rendered this interview unfair, then you will ignore that suggestion. The procedure preceding the interview was perfectly fair, provided that you accept Corrie and Blair's evidence about what took place in the car in preference to the accused's version of this ... and I'll come back to this" (pp 41-42).

[35] The trial judge highlighted the fact that there were material discrepancies between the appellant's statements and the evidence of what was found in the Wood (pp 6-7). He reminded the jury that Dr McLay had said that there was no evidence that any hairs, fibres or other material had been mutually transferred between the deceased and the accused; and that if there was the contact of rape and murder, it was surprising that there had been no transference from the girl to the accused or from the accused to the girl of hairs, fibres or other material. The trial judge observed that this was a point which the jury might think was not neutral but favoured the accused (pp 51-52).

[36] On the question of the standard of proof, the trial judge said:

"The standard of proof is beyond reasonable doubt; that is to say, that no jury can find an accused guilty of any crime unless they are satisfied beyond reasonable doubt of that guilt. Now, reasonable doubt just means what it says: it means a real doubt in your minds; not an insubstantial or fanciful doubt. I usually put it this way - I don't know whether it is helpful or not - that for a verdict of guilt you need not be absolutely certain of guilt - and I emphasise not absolutely certain - but you must be reasonably certain, because if you are not reasonably certain, you have a reasonable doubt. So bear in mind, ladies and gentlemen, that if I use phrases in my address to you such as "The Crown must prove" or "You must be satisfied" or "Are you satisfied," all these phrases are subject to the implied qualification "beyond reasonable doubt" (pp 4-5).

The verdict

[37] We understand from counsel for the appellant that in his report to the Parole Board, which is not available to us, the trial judge said that the jury, by then reduced to 14 members, convicted the appellant by a majority of 8 to 6.

III THE REFERRAL

The Commission's reasons

[38] The Commission has a concern that it may not be safe to regard the two confession statements as self-corroborating because of the large number of inconsistencies, which far outweigh any consistencies, between the confessions and the facts. It observes that much of the information which did correlate with the facts could have come from a number of sources other than as a direct result of the appellant's having been involved in the murder. It points out that by the date of the first confession the appellant would have had time to observe the general area of police activity around the Wood. By then, newspaper articles had already appeared and the body had been dissected. The Commission sets out in detail the inconsistencies in the appellant's confessions and the other possible sources of the alleged special knowledge on which the Crown relied (Referral, pp 6-8).

[39] The Commission observes that whereas the appellant said that he had hit the deceased three or four times on the head with a piece of wood, there were no post mortem signs to confirm that account.

[40] The Commission also comments on the general lack of any forensic evidence linking the deceased with the appellant or the appellant with the deceased (ibid, p 8). It considers that that gives additional cause for disquiet when considered along with the discrepancies in the confessions (ibid, p 9).

[41] As to the possibility that there was improper police pressure on the appellant, the Commission thinks that there are indications that, whether or not the appellant was actually bullied into make the first confession, he considered himself to be under pressure and at times behaved in the presence of police officers as if this was the case. By way of illustration, the Commission points to "a number of references, found during examination of the procurator fiscal's precognition, which indicate that a number of police officers observed [the appellant's] distressed state on 9 November, around the time he made the first confession" (ibid, p 9).

[42] The Commission attaches great significance to a Report dated 26 November 1994 that was obtained by the appellant's present solicitor, Mr Gordon Ritchie, from Professor Gisli H Gudjonsson, a consultant clinical psychologist and Professor of Forensic Psychology at the University of London.

[43] Professor Gudjonsson says inter alia:

" ... My concern is that although there is no evidence that Mr Gilmour suffered from mental illness at the time of his arrest, he seems to have been a shy and emotionally immature young man who is unlikely to have been able to cope well if pressured by the police. (I am making no judgment about whether or not he was threatened and physically assaulted by the police as he claims).

5. The retraction of the first confession to Detective Superintendent Brown on 9th November 1981, is important, because it demonstrates that Mr Gilmour was not happy about the confession he had made to DS Mair and DC Love and retracted it at the first available opportunity.

6. I am not happy about the circumstances of Mr Gilmour being transported by two police officers at 7 am from prison and spending more than two hours in a police car before reaching the police station, during which time he appears to have been extensively questioned. The reason for the trip seems unclear (according to their pocket books, the officers themselves seems (sic) to contradict each other about where exactly Mr Gilmour was to be taken).

7 Having studied this case in some detail, I find it to be a most worrying case. I am far from satisfied that any reliance can be placed on the two confessions. The frequent reference to "special knowledge" as a form of corroboration which allegedly matched the murder scene is most unconvincing as proof of Mr Gilmour's guilt. In our research into proven cases of false confession such "special knowledge" was often claimed by the police and the Crown to corroborate the confession whereas in reality it did not do so at all, because the police had either unwittingly communicated the salient information to the suspect prior to or during interrogation, the suspect had been able to guess some of the details correctly through commonsense, or information had been obtained from the media and local knowledge.

In addition, the incorrect salient details provided by Mr Gilmour and his apparent lack of familiarity of the murder are of further concern.

8 I am in no doubt that it unsafe (sic) to rely on Mr Gilmour's confessions to the police on the 9 November 1981 and 9 February 1982."

[44] Having regard to the factual errors in the confessions and to the appellant's claims that he had been put under pressure by the police, and in the light of developments and advances in the area of forensic psychology since the date of the trial, the Commission has reached the overall conclusion that there should be a reconsideration of the evidence led, with particular reference to the confessions. It considers that the results of the psychological evaluation of the appellant, the factual errors in his statements and the lack of forensic evidence against him, when seen together, cast doubt on the reliability of the confessions that were essential to the conviction. It accordingly considers that there may have been a miscarriage of justice.

The grounds of appeal

[45] The appellant has lodged three grounds of appeal, namely (1) a fresh evidence ground relating to the conclusions of Professor Gudjonsson; (2) an Anderson ground relating to the failure of the appellant's counsel and solicitors at the trial to investigate and to challenge the post mortem evidence led by the Crown, and (3) misdirection on the question of standard of proof.

[46] Counsel for the appellant has broadened the fresh evidence ground, without objection by the Crown, to cover certain documentary evidence disclosed by the Crown relating to the police enquiry. He has also amended the Anderson ground to the effect that, if the failures complained of did not amount to defective representation, the evidence now available from Professor Anthony Busuttil regarding the post mortem examination and findings constitutes fresh evidence.

Comments of counsel and agents on the Anderson ground

[47] The appellant's senior counsel at the trial and his instructing solicitor have been unable to submit comments on the Anderson ground by reason of ill-health. Junior counsel has submitted comments; but in view of the unavailability of papers in the case and the lapse of time, they are of only limited assistance to us. He comments that the case was prepared by a highly experienced and competent solicitor. The solicitor and he visited the locus and retraced the steps of the deceased. They carefully examined productions. They had several consultations with the appellant, senior counsel being present latterly. He has no doubt that the instructions of the appellant were conscientiously followed and acted upon.

IV THE EVIDENCE PRESENTED AT THE HEARING OF THE APPEAL

(A) Evidence relating to the police enquiry

[48] Since the Commission took up this case, the Crown has disclosed four sources of evidence relating to the police enquiry.

(i) The report to Crown Office by the procurator fiscal dated 21 December 1981

[49] This is an interim report on the enquiry in which the procurator fiscal gives the following account of the making of the first confession.

"About 2.50 pm Detective Superintendent Brown terminated the interview and asked Detective Sergeant Mair and Detective Constable Love to take Gilmour back to his cell within Paisley Police Office. About 2.55 pm whilst these latter two witnesses were escorting Gilmour back to his cell, he suddenly started to cry and became very emotional. Gilmour then said 'I can't go on like this, I'll have to talk.' When asked if he was referring to the murder he nodded his head a number of times. Before this Mair had advised him that he had better ask for special protection from the Prison Staff as the other prisoners would likely beat him up when they learned what he was charged with. He was reminded he was under caution. He was asked if he wished to return to the office which he had just left and he indicated that he did so. On the way back to the room Gilmour continued to sob. Once in the room (The Detective Chief Inspector's room) Gilmour was further reminded that he was under caution. He then made the following statement which was noted at the time by Detective Sergeant Mair ... "

(ii) The summary attached to the Crown precognition

[50] This is the summary by the procurator fiscal attached to the full precognition that he submitted to Crown Office in May 1982. It mentions that D Supt Brown felt that the circumstances in which DS Mair and DC Love obtained the first confession involved the use of physical violence against the appellant and that the procurator fiscal considers it arguable that before making the first confession the appellant had been subject to many hours of interrogation. This is the relevant passage.

"I include a copy of the report I sent on 21 December 1981 in connection with the death of [XY]. At that time Gilmour was the prime suspect but I took the view that there was not sufficient evidence to justify charging him with the murder. I was not entirely happy with the circumstances in which Detective Sergeant Mair and Detective Constable Love had obtained the confession. Detective Superintendent Brown had the feeling that physical violence had been applied to the accused and at that time I was not prepared to rule out that possibility. I have now precognosced the accused's mother, Mrs Christina Gilmour ... and I am satisfied that Gilmour did confess to the murder and that he was not subjected to any physical violence. On 9 February 1982, a special escort of Police Officers who were intimately involved in the [XY] murder, conveyed Gilmour from Longriggend Remand Unit to the Court. During the course of this journey he made further admissions to the Officers who were in charge of his escort and later to Detective Superintendent Craig and Detective Sergeant Mair (the Officer to whom his first confession had been made).

While it can be argued that the first confession made on 9 November 1981 was made after the accused had been subject to many hours of interrogation, the same cannot be said about the confession made on 9 February 1982."

The Crown disclosures do not include the precognition of the appellant's mother to which the procurator fiscal refers. We do not know what she said that satisfied him that the appellant had not been subjected to any physical violence.

(iii) The police statements of D Supt Brown and DCI McMath

[51] Both of these statements are dated 24 March 1982. It appears that they were available to the advocate depute at the trial. In his statement D Supt Brown says that in the early afternoon of 9 November the appellant steadfastly denied murdering the deceased. Later that day, after he had made the confession, the appellant was further questioned by D Supt Brown. He then started to cry, saying that he had not killed the girl and that he had made it up to please the other police, that is to say DS Mair and DC Love, because he could not take any more questioning.

[52] The relevant parts of D Supt Brown's statement are as follows.

"He was uncertain of which of the 2 days ie Tuesday or Wednesday, that he had gone back to the Wood about 4 o'clock, although eventually he said he thought it was the Tuesday. He further related that he had gone to the shop where his mother works and had tried to borrow money for petrol for his car and this was in the region of 5.15pm or thereabouts on Wednesday 4 November 1981. He said his mother had refused him money for the petrol and that he had then gone home and prepared tea for himself and his mother, which they had ultimately taken together. Whilst he was quite open and frank about the acts of indecent exposure, he steadfastly denied that he had anything to do with the murder of the girl. I terminated the interview with him about 2.50pm that afternoon (9.11.81) as it was my intention to cross check points which he had raised in regard to his movements and at the same time try and determine what his behaviour was at these particular moments. I then left the Detective Chief Inspector's Room at Paisley Police Office, having told the witnesses Detective Sergeant Mair and Detective Constable Love to return Gilmour to the cells as he was due to go to Barlinnie on remand (p 8) ...

Whilst he did mention putting something round her neck and this was of some considerable significance, he could not give any details of what the item had been. It has been my experience that persons committing crime and allowing for varying degrees of severity, that the person of the assailant has always been able to describe accurately some intimate detail of the crime. There has always been something which quite clearly indicated that he was telling the truth and that there is no doubt that the person giving the details is the person responsible. I could not find that Gilmour came into this category at that time. In my opinion for him to draw a map of the area was less than meaningful. He has lived in the area for years. On his own admission he had ... repeatedly been in the Wood on 'flashing expeditions.' The fact that the Police Officers were at either end of the path during the course of the search of the Wood was indicative that the action must have been somewhere in the middle. Further, that [sic] with the trees etc., losing their foliage it was not difficult to see through the trees etc where the Police were in relation to the locus.

I subsequently asked Gilmour if he was telling the truth. He started to cry and shake his head. He then said:

'I didn't kill the girl. I only made it up to please the other police.'

I assumed he was referring to the witnesses Detective Sergeant Mair and Detective Constable Love. Asked what he meant by this, he replied:

"I couldn't take any more questioning'.

When I related his lack of specific details to my opinion of him as a person, I could see him being the type who would be prepared to lie if the questioning of him became too forceful. These factors together with the fact that at that particular moment in time I had no other material evidence to corroborate or lend credence to his admissions made me decide not to charge him with the murder of the girl at that time.

The following day, Tuesday 10 November 1981, I returned to the Rannoch Wood along with the witness Detective Chief Inspector McMath and tried to relate the 'geography' of Gilmour's statement, in particular his mention of a 'fat tree' in regard to its relationship to the locus and in particular where the path indicated in the leaf carpet had started. Again I found that I could not specifically relate this to a description given by Gilmour as the nearest tree which seemed to answer his description was situated some 90 yards east of the point in the path where I had seen the start of the drag marks" (pp 11-12).

[53] In his statement DCI McMath described the occasion on which D Supt Brown questioned the appellant about the details of his first confession. He said inter alia that when he was asked to describe the position in which he had left the deceased, the appellant was "very evasive" and said that he could not remember. He said "I think she was in view of the path. Just where she landed when I jumped on her." After a further question about the deceased's clothing, D Supt Brown said to the appellant "Are you telling the truth about this matter?" The appellant started to cry and said "I didn't kill the girl. I only made it up to please the police." When he had regained his composure, he was asked to explain what he meant by that. He said "I could not take any more questioning." He was asked about the sketch. He explained that he had seen the police guarding the spot and concluded that this was the murder spot. DCI McMath concluded his statement with the following.

"I formed the opinion that Gilmour was lying when he confessed to the murder. I base my opinion on the following facts which do not blend with the statement made by Gilmour who, if he had committed the crime, would certainly be aware of

(a) There were no injuries to the head or body which could have been caused by an assault with a piece of branch or other instrument.

(b) The girl was strangled with a ligature of twine. This twine is very distinctive and very common.

(c) The body was found some 50 yards north of the path. It could not be seen from the path. It had been dragged there face down and turned on its back at the point where it was found by the police.

(d) The girl had been wearing tights not socks and she had been wearing grey shoes.

I also formed the opinion that Gilmour is a weak and inadequate person who could easily break down under close and persistent questioning.

Mr Brown told me he was of the same opinion as I was in respect of the confession made by Gilmour and he instructed that no further charge be laid against him - Gilmour - at that time" (pp 3-4).

It is not clear whether the full force of these officers' doubts was conveyed to the jury at the trial.

(iv) D Supt Brown's 1993 statement

[54] D Supt Brown and others involved in the original enquiry were interviewed in November 1993, probably in connection with the appellant's first petition to the Secretary of State. They recounted that the appellant was distressed, but said that no unfair pressure had been put on him. D Supt Brown, however, who had by then retired from the force, was more forthcoming. He recalled that the appellant had said that he had made the admission only because of concentrated questioning and that he could take no more. D Supt Brown said that he formed the opinion that the appellant was not in the proper frame of mind to give a voluntary statement (Referral, p 9). The statement that D Supt Brown gave on that occasion includes the following.

" ... Raymond Gilmour came to our attention in the course of the investigation and he was questioned. He confessed to the murder to two of my colleagues, but I did not believe the confession as it was wrong in too many key areas. I decided not to charge him. I was later taken off the case, and within a few days, Gilmour had been charged after having made a new confession ...

... I have never been happy about the Gilmour conviction. In his second confession he said certain things which were not said in his confession during my investigation. He also said some things which were opposite to what was said during our questioning of him. It is not my place to comment on the conduct of other officers, but it seemed too convenient that Gilmour confessed in this way so soon after a new team took over the case. It is also unheard of for serious crime squad officers to accompany a prisoner from gaol to court unless there was a special reason."

(B) The evidence of Professor Busuttil and Professor Vanezis

[55] The appellant's present solicitor instructed Professor Anthony Busuttil, formerly Regius Professor of Forensic Medicine at the University of Edinburgh, to report on the work of the Crown pathologists. Professor Busuttil was severe in his criticisms. I need not go into the details because his conclusions are no longer in dispute. In the light of Professor Busuttil's Report, the Crown instructed Professor Peter Vanezis, Regius Professor of Forensic Medicine at the University of Glasgow, to consider the case. He agreed with Professor Busuttil on all material points. Their agreed conclusions are recorded in a joint minute in the following terms.

"1. The post-mortem report prepared in connection with the death of [XY] was perfunctory and lacking in the detail to be expected from such a report.

2. The report records that the deceased suffered a minimal number of injuries to the head. It is possible that a blow could have been struck with a piece of wood, but those injuries were not consistent with the deceased having been struck on the head three or four times with the branch of a tree.

3. The tie worn by the deceased could not have caused the ligature mark found around the deceased's neck.

4. The sexual intercourse between the deceased and her attacker took place while she was alive.

5. There are no injuries to the deceased's mouth, lips or teeth which could have indicated that a hand had been placed forcibly across her mouth.

6. The post-mortem report records that the deceased had the following injuries to her hands:-

(i) a superficial incised wound on the palmar aspect of the right index finger.

(ii) a small skin flap was raised in the corresponding portion of the little finger.

(iii) a small cut on the inner side of the middle segment of the left ring finger with a linear abrasion of the lateral side of the finger and another abrasion at the base of the finger.

These injuries suggest recurrent contact with the tip of a sharp pointed instrument. They are consistent with the deceased having attempted to ward off blows struck with a sharp pointed instrument such as a knife. As such they could be characterised as defensive injuries."

(C) The evidence of Professor Gudjonsson

His methods and conclusions

[56] Professor Gudjonsson is an internationally renowned forensic psychologist. He is the author of the standard textbook The Psychological Assessment in the Psychology of Interrogations and Confessions: A Handbook. Dr Gary Macpherson, the expert witness for the Crown, says that "[he] is the leading academic psychologist within the United Kingdom with respect to the psychology of interrogation and confessions and has published a range of articles in the specific field of confession evidence." The relevance of such evidence is now well recognised (eg R v Ward (1993) 96 Cr App R 1; R v Roberts, Court of Appeal, unrepd, 19 March 1998).

[57] Professor Gudjonsson interviewed the appellant in HM Prison, Saughton on 25 June 1994 and gave him several psychological tests. From these he drew the conclusions that I have quoted from the Commission's referral.

[58] Professor Gudjonsson does not consider it to be his function to decide whether a confession is true or false. He recognises that that is a matter for the court. He sees his function as being that of identifying any matters of concern as to the reliability of the confession.

[59] Professor Gudjonsson's approach is to assess the results from a number of psychological tests and then to see whether there is any independent support for the conclusions that those results indicate. He considered that the key tests in this case were his own testing scales for suggestibility and compliance. They are used world-wide.

[60] The first of these is the Gudjonsson Suggestibility Scale II (GSS). This measures the extent to which an individual can be misled by leading questions, a phenomenon known as "yield," and can change his position in response to interrogative pressure, a phenomenon known as "shift." The concept of suggestibility involves the idea that the individual is persuaded that an account put to him is correct. On the GSS, the appellant's shift score was found to be elevated. This indicated that he did not cope well with interrogative pressure. His inconsistency score was unusually high. He contradicted himself on almost half of the items in the test by answering negatively to pairs of logically opposite items. However, Professor Gudjonsson considered that this last point had no bearing on the case.

[61] The second test is the Gudjonsson Compliance Scale (GCS). The concept of compliance differs from that of suggestibility primarily in that it does not require private acceptance of the proposition or request. The GCS measures the tendency of the individual to go along uncritically with the requests of others. It is designed to assess compliant behaviour and has as its two principal characteristics eagerness to please and avoidance of conflict. A compliant individual may believe himself to be innocent of the charge, but accept the suggestion that he is guilty in order to avoid conflict and to be relieved of the short-term pressure of interrogation.

[62] The GCS is a self-reporting test in which the subject assesses his own tendency to comply as at the date of the confessions and as the date of the test itself. The appellant's score for 1994, the year of the test, fell within normal limits. The score for 1981/1982, the time of the murder and the trial, fell well outside normal limits. This indicated a high level of compliance at the time of the confessions. The score for 1994 indicated that the appellant had acquired maturity and had learned to stand up for himself during his years in prison.

[63] Professor Gudjonsson also gave the appellant four personality tests, two of which need not concern us. The tests that mattered were the Eysenck Personality Questionnaire (EPQ) and the Minnesota Multiphasic Personality Inventory (MMPI). The EPQ results suggested that the appellant was a highly anxious introvert. The MMPI showed that his clinical profile indicated immaturity, dependency and problems with sex role identity. Professor Gudjonsson accepted that these tests were of limited value, but he considered that they indicated the vulnerability of the appellant to pressure.

[64] Professor Gudjonsson acknowledged the limitation of his study caused by his having examined the appellant 12 years after the conviction. He also conceded that his own techniques had developed over the years. Nevertheless he concluded that the test results were reliable, not least because they showed a consistent pattern. He found independent support in the assessment of the appellant given by the Reverend James C MacColl, who has known the appellant well for many years and has regularly visited him since he was arrested. Mr MacColl completed a parallel compliance form assessing the appellant as at 1981/1982 and 1994. The test completed by Mr MacColl suggested that the appellant was "very compliant" at the relevant time. His information to Professor Gudjonsson was to the effect that the appellant had matured considerably while in prison. This was confirmed by the appellant's success with his studies. Mr MacColl was not led as a witness; but his affidavit is lodged and its contents are not in dispute. In Professor Gudjonsson's view, Mr MacColl's response broadly supported the appellant's own test scores.

[65] Professor Gudjonsson found further support for his conclusions in two pre-trial reports dated 5 February 1982 and 26 May 1982 by Mr W J Spalding, a social worker, who described the appellant's personality as immature; and in the pre-trial reports of two consultant psychiatrists, Dr Freda Berry and Dr A I Cheyne, who considered that the appellant had difficulties with relationships.

[66] Professor Gudjonsson also relied on the views of D Supt Brown and DCI McMath as to the credibility of the first confession; the appellant's undisputed emotional state at that time; the unusual circumstances surrounding his transfer from Longriggend to Paisley police office, and the presence of DS Mair on both occasions on which the appellant confessed. He considered that the appellant's vulnerability was heightened by his sexual problems and by the intimidating atmosphere of the police office.

[67] Professor Gudjonsson concluded overall that it was unsafe to rely on the confessions. These were his reasons.

(i) If the scores from 1981/1982 were reliable, as they appeared to him to be, that indicated that the appellant was potentially vulnerable to giving an erroneous account if pressured by the police.

(ii) At the time of his interrogation, he was a shy and emotionally immature young man who was unlikely to have coped well with police pressure, even if he had not been threatened and assaulted as he claimed.

(iii) The retraction of the first confession was important because it demonstrated that the appellant was not happy with the confession that he had made. It was noteworthy that the retraction was made at the first opportunity.

(iv) The circumstances of the confessions caused Professor Gudjonsson concern. Research had demonstrated that where a confession was said to include special knowledge, that was not always an accurate indication that it was true. There were cases where such confessions had been shown to have been false. In some the police had communicated the salient information to the suspect before or during the interrogation, or the suspect had been able to guess some of the details correctly, or the information had been obtained through local knowledge or reports in the media.

[68] Professor Gudjonsson's view that the appellant was a vulnerable individual did not depend on its being proved that he had suffered violence or threats of violence. He remained of the view that this was a "very worrying case."


Dr Gary Macpherson's critique

[69] Dr Macpherson is a consultant clinical psychologist at the State Hospital, Carstairs. He is a graduate in psychology of Glasgow Caledonian University and has a master's degree and a doctorate from the University of Edinburgh. He is an associate fellow of his professional body.

[70] Dr Macpherson was challenged by counsel for the appellant on the question of his qualifications. He admitted that for a period in 2000 he claimed to have a doctorate although he did not obtain a doctorate until 2004. I was unconvinced by Dr Macpherson's excuses for having done this. Such conduct cannot be condoned. In this case, however, nothing turns on the point.

[71] Dr Macpherson did not interview the appellant. His function was to prepare an appraisal of Professor Gudjonsson's Report. He acknowledged Professor Gudjonsson's pre-eminence in forensic psychology and in particular in the psychology of interrogation and confessions. He made several reasoned comments as to the limitations of Professor Gudjonsson's tests, most of which had already been conceded by Professor Gudjonsson himself. He had used Professor Gudjonsson's GCS but was dissatisfied with the results. He pointed to the vulnerability of the GCS to false results since it is based on self-reporting and may be vitiated by faking, self-report bias or a lack of self-knowledge. It is not a robust test. The use of a retrospective method in which the appellant is required to assess himself as he was many years earlier is capable of a wide margin of error. The advantage of the GSS is that it is a behavioural measure and is not dependent on self-report. It may be less vulnerable, but it is not entirely resistant to faking or self-report bias. On the GSS the appellant's shift score was elevated, but was not outwith the normal range. Since the real issue in this case concerned the appellant's compliance, the GSS results were less relevant.

[72] There was no collateral information about the appellant's functioning at the time of the confessions, for example from his parents. Mr MacColl's assessment of the appellant at that period was inadequate. He had answered only 7 out of 20 questions. This showed that he did not know the appellant well enough. In the absence of evidence about the appellant's functioning in 1981/1982, it was wrong to accept Mr MacColl's word uncritically.

[73] Dr Macpherson commented that the reports available at the trial did not suggest any compelling evidence of compliant behaviour. If anything, they showed the opposite. He said that if the appellant had suffered police pressure on the occasion of the second confession, there would have been a record of that in the police notebooks. I think that there could be two views on that point.

[74] Dr Macpherson's overall conclusions were that the test results were unremarkable; that the tests themselves had limitations arising from the element of self-report; that there were contradictions by the appellant on almost half of the items in one of the self-report measures; that the published literature suggested that the GCS was vulnerable to faking; that the two personality tests to which I have referred were of limited value; that there was no corroborative evidence of compliant behaviour on the appellant's part before the making of the confessions; that the contemporary psychiatric and social work reports did not suggest that he was a compliant individual; that the confessions appeared to have been made voluntarily and without the pressure of questioning; and that no other evidence was known to him that could cast doubt on the genuineness of the confessions.


V SUBMISSIONS FOR THE APPELLANT AND THE CROWN

[75] Counsel for the appellant submitted that all three chapters of the evidence that he had presented were new evidence and that the question was what effect that evidence would have had on the minds of the jury. In the context of a thin prosecution case, the effect of it would have been to introduce further doubt as to the reliability of the confessions on which it depended. A verdict returned in ignorance of it must be regarded as a miscarriage of justice.

[76] The advocate depute accepted that the Crown case at the trial was thin; that there was no forensic or scientific evidence linking the appellant to the scene of the crime; that the first confession was crucial to the Crown case, and that the second confession stood or fell with it. She submitted that, with the exception of Professor Gudjonsson's test results and his interpretation of them, none of the evidence led for the appellant was new. It related to matters that were rehearsed at the trial. Professor Gudjonsson's evidence lacked cogency for the reasons given by Dr Macpherson. It would have made no difference to the outcome of the trial.

VI CONCLUSIONS AND DISPOSAL

The issues

[77] There are three main issues in this case, namely (1) whether the Anderson ground is established; (2) whether any of the evidence relied on by the appellant is fresh evidence qualifying under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act), as amended; if any of it is fresh evidence, whether there is a reasonable explanation why it was not given at the trial (1995 Act, s 106(3)(a); (3A)); and, if so, whether it is of such significance that a verdict reached in ignorance of its existence must be regarded as a miscarriage of justice; and (3) whether there was a misdirection on the question of reasonable doubt and, if so, whether there was a miscarriage of justice on that account.

The Anderson ground

[78] In my opinion, there is no foundation for the Anderson ground. Counsel for the appellant submitted that the evidence of Professor Busuttil and Professor Vanezis constituted new evidence. But he submitted that if it was not new evidence, the appellant had not been competently defended at the trial, since that evidence could and should have been obtained and led by the defence. Since it would not have been possible to have had a defence post mortem and since counsel has led no evidence as to what would have been proper professional practice for trial counsel in that situation, we have no basis on which we could even consider this ground.

The fresh evidence ground

The tests that the court has to apply

[79] Where an appellant tenders evidence in support of a plea that there has been a miscarriage of justice (1995 Act, s 106(3)(a)), he must first satisfy us that that evidence is fresh evidence and not merely an amplification of evidence led at the trial.

[80] If the evidence is held to be fresh evidence, the appellant must then provide a reasonable explanation as to why it was not heard at the trial (1995 Act, s 106 (3A)). If he fails to do so, the question as to the effect that the new evidence might have had on the jury's consideration of the case does not arise (Campbell v HM Adv 1998 JC 130, at pp 146C-F, 147E).

[81] If the appellant provides a reasonable explanation, the court must then consider whether the fresh evidence is of such significance that it may reasonably conclude that if the jury had heard it, they would have been bound to acquit; or whether it is at least capable of being described as important and reliable and is of such significance that a verdict returned in ignorance of it must be regarded as a miscarriage of justice (Cameron v HM Adv, 1991 JC 251, Lord Justice General Emslie at pp 261-262; Kidd v HM Adv, 2000 JC 509; Megrahi v HM Adv, 2002 JC 99, at para [219]; Kelly v HM Adv, 6 August 2004, at para [20]; Johnston v HM Adv, 2006 SCCR 236). In this appeal we are concerned with the latter question only.

[82] Our decision in a fresh evidence appeal of this kind is not a verdict on the guilt or the innocence of the appellant. The critical question is as to the effect that the new evidence might have had on the minds of the jury (Johnston v HM Adv, supra, at para [109]).

Is any of the evidence led to be regarded as being new?

The information disclosed by the Crown

[83] The pre-trial statements of D Supt Brown and DCI McMath are not, in my opinion, fresh evidence. They appear to contain the substance of their evidence at the trial. The mere fact that they released the appellant without charging him was a sufficient indication to the jury of their joint view as to the reliability of the first confession. D Supt Brown's 1993 statement, though perhaps more outspoken, merely amplifies a view that must have been clear to the jury.

[84] However, the procurator fiscal's report to Crown Office dated 21 December 1981 discloses that just before the appellant made the first confession, DS Mair advised him to seek special protection in prison since other prisoners would be likely to beat him up. This appears not to have been disclosed at the trial. In my view, it is fresh evidence.

[85] So too is the summary attached by the procurator fiscal to the precognition submitted to Crown Office in May 1982. This discloses that around the time of the procurator fiscal's Report dated 21 December 1981, D Supt Brown confided to him that he suspected his own colleagues of having been violent to the appellant. D Supt Brown does not mention this in his statements and it is obvious that he did not mention it at the trial.

Professor Gudjonsson's evidence

[86] The Crown submits that no reasonable explanation has been given for the failure of the defence at the trial to lead psychological evidence as to the appellant's personality. I shall assume in favour of the Crown that such evidence, which was later held to be admissible in principle (cf Blagojevic v HM Adv, 1995 SCCR 570), would have been admitted at the appellant's trial, although I am not convinced that that is so.

[87] In addition to the results of his own tests, Professor Gudjonsson relied on two personality tests, the EPQ and the MMPI, that were available at the date of the trial. He considered that the results on the EPQ and the MMPI tests, although of limited value in themselves, indicated the appellant's vulnerability. It is not disputed that these tests could have been carried out in preparation for the trial. The results of these tests are therefore not new evidence in the strict sense.

[88] Nevertheless, the new evidence with which we are concerned is the evidence of Professor Gudjonsson's own tests and of the conclusions that he draws from them. The evidence about the EPQ and MMPI tests merely supports and provides a check upon them.

[89] The question then is whether the evidence of Professor Gudjonsson's tests would have been available at the time of the trial. The answer is plainly no. It is established, in my view, that this aspect of forensic psychology was in its infancy at the time of the trial. At that time Professor Gudjonsson had already embarked on the study of criminal confessions that was to give him the pre-eminent position that he now enjoys. But he had only the most exiguous research data. The concepts of suggestibility and compliance were known at that time, but they were identified in individuals by intuition. The identification of the concepts of yield and shift, and the development of tests to measure suggestibility and compliance lay in the future.

[90] Professor Gudjonsson's evidence today has been informed by a quarter century of experiment, clinical experience, and published research. The Gudjonsson Suggestibility Scale (GSS) was not published until 1984 and was revised in 1987. The Gudjonsson Compliance Scale (GCS) was not published until 1989. In referring in his Report to the GSS, Dr Macpherson says that "an important development since Raymond Gilmour's conviction therefore has been the construction and standardisation of a specific measure to assist in the assessment of interrogative suggestibility."

[91] I accept Professor Gudjonsson's evidence that if he had been asked at the trial to give his opinion on the matters on which he has given his opinion to us, he could not have done so with any degree of confidence or on any objectively measurable basis. In my opinion, his evidence is fresh evidence.

The evidence of Professor Busuttil and Professor Vanezis

[92] We start with the difficulty in this case that there is no transcript of the evidence given by the Crown pathologists at the trial. It is reasonable to assume that one or other of them was taken through the post-mortem report point by point. Therefore, I proceed on the basis that the jury were told that the deceased had the cuts on her fingers to which I have referred. But I infer that, in keeping with their Report, the Crown pathologists attributed no special significance to these cuts. If they had, I am certain that the trial judge would have mentioned that in his careful and comprehensive charge. In a letter to Crown Office dated 28 March 2003 Dr McLay responded to the reports of Professor Busuttil and Professor Vanezis. Dr McLay appeared not to agree with their interpretation of the cuts as being defensive injuries. He commented that it was unnecessary to predicate the use of a weapon. It seems therefore that the Crown pathologists decided that the cuts did not raise any issue that required to be mentioned at the trial.

[93] In these circumstances I accept that the evidence of Professor Busuttil and Professor Vanezis as to the significance of these cuts is new evidence. But even if it is not new evidence on that question, it is important evidence of the inadequacies of the post mortem report and, by the clearest implication, of the lack of professionalism of Dr Weir and Dr McLay. That wider aspect of the agreed evidence is, in my opinion, new evidence.

Is there a reasonable explanation why the new evidence was not led at the trial?

The procurator fiscal's reports to Crown Office

[94] Since evidence of this kind was not disclosable by the Crown in 1982 (cf McLeod v HM Adv (No 2), 1998 JC 67), there is a reasonable explanation why it was not led at the trial.

Professor Gudjonsson's evidence

[95] For the reasons that I have given in concluding that this is new evidence, I consider that there is a reasonable explanation why it was not led at the trial.

Professor Busuttil and Professor Vanezis

[96] There was no defence evidence on the questions now raised by Professor Busuttil and Professor Vanezis. But it was relatively uncommon in those days for the defence to obtain its own specialist advice, particularly in a case such as this where there had been no opportunity for a defence post mortem. In my opinion, there is a reasonable explanation why this evidence was not led at the trial.

What is the significance of the new evidence?

Approach to new evidence

[97] We cannot look at the new evidence in isolation. We have to set it in the context of the evidence led at the trial. Although the Crown led a sufficiency of evidence (Williamson v Wither, 1981 SCCR 214), our starting point is to consider how robust the Crown case was. We can then consider whether the fresh evidence would have had any material bearing on the jury's approach to the key issues.

Appraisal of the Crown case at the trial

[98] In my opinion, there were four outstanding areas of weakness in the Crown case; namely, the lack of evidence linking the appellant with the deceased; the errors and discrepancies in the appellant's confessions; the doubt as to whether the alleged special knowledge truly related to matters that could have been known only by the perpetrator of the crime; and the doubts as to the fairness of the circumstances in which the confessions were obtained.

[99] The following were the missing evidential links. First, there was no eye-witness evidence that the appellant had been in the Wood on the date libelled. Second, although it appeared that the deceased had been violently attacked, forced to the ground and dragged for some distance, in whatever order these events occurred, there was no evidence of any transfer of textile fibre, or of any other material, between the appellant and the deceased, and no sign of any contamination of the appellant's clothes by soil or vegetation. In particular, no fibres like those from which the ligature was made were found on the appellant's clothes. Third, there was no forensic evidence linking the deceased with the appellant or the appellant with the deceased. There was no blood on any of the appellant's clothing. There was no blood on the appellant's penile swab, but not too much should be read into this since the examination took place three days after the murder. Fourth, there was no sign of scratch marks on the appellant's hands or face. Fifth, there was no sign on the appellant's hands of friction marks from the twine.

[100] The trial judge directed the jury that the Crown case stood or fell on the evidence of the confessions; and that if the first confession fell, the second fell with it. I think that the advocate depute was right to accept that this direction was correct. It was a significant direction in the light of D Supt Brown's decision to release the appellant, without having charged him, after he made the first confession.

[101] The first and most serious problem that the confessions raise is that the appellant described numerous details that were inconsistent with the facts. These are the main discrepancies.

(1) While the appellant said that he hit the deceased three or four times on the head with a piece of wood, the police officers present at the post mortem could recall no sign that the deceased had been struck in this way. Both of the Crown pathologists seem to have regarded the head injury seen at the post mortem as being minor. Dr Weir said that if the deceased had sustained several blows on the head with a thick branch, he would have expected to find more signs of injury (Charge, p 55).

(2) The appellant said that he had strangled the deceased with "her tie or the strap of her bag" (first confession) or "her tie or belt from her bag" (second confession), whereas she was strangled with a piece of rough twine.

(3) The appellant said that he had held the ligature on the deceased's neck; whereas the twine had been pulled tightly round her neck three times.

(4) The appellant said that the struggle had moved them about; whereas the officers who found the body, and those who were next on the scene, made no mention of any sign of a struggle.

(5) The appellant said that he got up and left the deceased; whereas the officers who found the body did so by following drag and scuff marks that started four yards from the edge of the path, and at the point where the scuff marks started there was again no sign of a struggle.

(6) The appellant claimed to have left the body about 10 to 12 feet off the path in an area of light bush and later said that he left it about 30 feet from the path; whereas the body was found 65 to 70 yards from the path.

(7) The appellant said that the body was left in view of the path; whereas it was in a natural hollow, concealed and out of sight of the main path, with attempts having apparently been made to conceal it.

(8) The appellant said that the deceased had been wearing white socks; whereas she had been wearing tights.

(9) The appellant said that the deceased was wearing black shoes; whereas her shoes were grey.

(10) The appellant said that the deceased was wearing a black blazer; whereas her blazer was blue.

In addition to these errors, the appellant was unable to describe the deceased's underwear.

[102] There were of course parts of the first confession that, according to the Crown, disclosed special knowledge: but the alleged special knowledge confession was not of the particularly cogent kind in which the suspect tells the police something that they do not know; for example, where the body is buried (eg Manuel v HM Adv, 1958 JC 41; Alison, ii. 580). In this case, those parts of the appellant's statements that seemed to display special knowledge related to knowledge that was accessible to him from other sources.

[103] The first confession was not made until 9 November 1981, by which time the appellant would have had time to observe the general area of police activity around the Wood. He would have known the layout of the Wood from his frequent visits there. Before then, significant points in the confession had been reported in the media. In particular, the appellant's reference to his having gone down a path leading from the corner of Willow Drive and going through the Wood before killing the deceased can be related to information in the Evening Times of 5 November 1981, which referred to the fact that the Wood was sealed off and that mobile police headquarters had been established on Willow Drive, a hundred yards from where the body was found. The appellant's statement that he picked up a piece of branch and hit the deceased with it can be related to information in the late night special edition of the Evening Times of 6 November 1981, which reported on the front page that the deceased had been battered to death by a blunt instrument. The appellant's statement that he tried to have sex with the deceased can also be related to information in the Evening Times to the effect that the killing was sexually motivated. These newspapers were defence productions.

[104] Even on the evidence led at the trial, there are grounds for scepticism about the reliability of the confessions. Both confessions were part of a similar pattern of events in which the appellant, when alone with police officers, made an incriminating statement outwith the context of a formal interview; was then given the opportunity to repeat it in the interview room; then did so in the presence of DS Mair, among others, and retracted the confession when he was no longer under pressure.

[105] All of this, in Professor Gudjonsson's view, displayed a pattern consistent with the appellant's personality. Even if he did not suffer violence at the police office, the threat of it, or his own apprehension of it, would add to the pressure that he felt. In the case of the first confession, when being escorted by DS Mair and DC Love, the appellant was told that he would require special protection in prison because of the nature of the charge. In Professor Gudjonsson's view, this could well have heightened his anxiety.

[106] In the case of the second interview, there is the possibly irregular police procedure by which DI Corrie and DS Blair turned up at Longriggend at 7 am apparently to take the appellant to Paisley sheriff court in lieu of normal prison transport and took him to Paisley police station instead. According to DI Corrie's police statement, their reason for taking him to Paisley was that he was "in protective custody," but whether that required a special police escort has not been established. DI Corrie's explanation seems to be quite unnecessary. If the officers wished to collect the appellant for interview, they were entitled to do so whether he was in protective custody or not. In the light of D Supt Brown's statement of November 1993, I am not disposed to accept that DI Corrie's explanation is necessarily true. If D Supt Brown is right, the contrived explanations offered by the police officers concerned could indicate that they had something to hide. In my opinion, the likeliest conclusion is that their purpose all along was to take the appellant to Paisley police office for interview.

[107] Part of the attack on the second confession was a suggestion that the notebook entries made by DI Corrie and DS Blair were inconsistent as to the purpose for which the appellant was conveyed to Paisley. I do not regard this as a point of any great significance. If, as appears to be the case (Charge, p 43D ff), DS Blair wrote up his notebook after DI Corrie, whose notebook entry he had initialled, DS Blair's record was correct because it was to Paisley police office that the appellant was taken first.

[108] All of these considerations were raised by the defence at the trial and were left by the trial judge for the jury to assess. The verdict, although returned by a bare majority on thin evidence, was one that the jury were entitled to return. It cannot, in my view, be said to have been perverse.

[109] But, as this court observed in Johnston v HM Adv (2006 SCCR 236), that does not mean that the evidence led at the trial is to be disregarded. That evidence gives us our starting point. It casts a shadow of doubt over the confessions, whatever view one takes of the conduct of the police. The weaknesses that I have described provide the vital background against which we have to assess what effect the fresh evidence would have had on the jury's consideration of the case.

Appraisal of the new evidence

[110] The procurator fiscal's summary attached to the full precognition dated May 1982 is significant. It indicates that D Supt Brown suspected that certain members of his own team had been violent to the appellant. When D Supt Brown confided these suspicions to the procurator fiscal, he could not have imagined that one day they would be disclosed to the defence. If D Supt Brown's suspicions had come out at the trial, they would have been a significant matter for the jury's consideration.

[111] In that event, the information given by the procurator fiscal in his Report of 21 December 1981 about DS Mair's conduct towards the appellant just before he was returned to the interview room to make the first confession would have been significant.

[112] The issue between Professor Gudjonsson and Dr Macpherson is centred on the interpretation of Professor Gudjonsson's findings and the validity of his conclusions.

[113] I was impressed by Professor Gudjonsson's moderately expressed evidence and by his willingness to concede the limitations of psychological testing of the kind that he carried out. It is clear that in this aspect of clinical psychology Dr Macpherson has not attained the same level of experience or eminence. My own view is that Professor Gudjonsson's findings and conclusions were cogent and persuasive, and were not seriously undermined by Dr Macpherson.

[114] Dr Macpherson has pointed out the limitations of Professor Gudjonsson's techniques, most of which Professor Gudjonsson has conceded, and has drawn less favourable conclusions from Professor Gudjonsson's test results. These, in my view, are questions on which honest experts may reasonably differ; but the issue in this case is not which of these experts is right. That could be debated at an academic seminar. The issue for us is whether, in light of the Crown case at the trial, the new evidence is of such significance that we should set the conviction aside. That requires us to consider what effect Professor Gudjonsson's conclusions would have had on the minds of the jury, even if they had heard Dr Macpherson's critique.

[115] The jury would have had to evaluate the confessions in the light of the evidence that the appellant was a vulnerable and sexually confused teenager who, according to the psychiatric reports, had an anxious personality with low self-esteem. They would then have had to consider the surrounding circumstances, and not least the fact that appellant made the confessions in the "sinister venue" of a police station (Chalmers v HM Adv, 1954 JC 66, Lord Justice General Cooper at p 79) and retracted both of them.

[116] In that context, Professor Gudjonsson's evidence would have been a relevant and important consideration in the jury's determination. I am clear in my own mind that, even if we take into account Dr Macpherson's criticisms and the points raised by the advocate depute in her skilful cross-examination of Professor Gudjonsson, we cannot say that the jury would have disregarded Professor Gudjonsson's evidence.

[117] Furthermore, Professor Gudjonsson would not have stood alone. Apart from the other sources, such as Mr MacColl, to whom he referred, his own experimental appraisal of the appellant's suggestibility and compliance would have been borne out by the practical judgment about the appellant's vulnerability under pressure that was made by D Supt Brown and DCI McMath, who considered that the appellant's first confession was false.

[118] I conclude therefore that the evidence of Professor Gudjonsson, even subject to Dr Macpherson's criticisms, is important and significant.

[119] According to Professor Busuttil and Professor Vanezis, the injuries to the deceased's fingers, on which the Crown pathologists did not comment in the post mortem report, were consistent with the deceased's having attempted to ward off blows struck with a sharp pointed instrument such as a knife, and as such could be described as defensive injuries (Joint Minute, supra, para 6). Since the Crown case depended critically on two confessions, allegedly showing special knowledge, that were at variance on so many points with the true facts, it was plainly relevant that neither mentioned a knife. This could be thought to cast further doubt on the authenticity of the confessions.

[120] In my opinion, the evidence of Professor Busuttil and Professor Vanezis suggests that the Crown pathologists missed the significance of the cuts to the deceased's hand; but if they at least recognised the possibility that the cuts were sustained in an attack with a sharp pointed instrument such as a knife, they were culpable in failing to mention that possibility in the post mortem report or in their evidence. Furthermore, the overall verdict of Professor Busuttil and Professor Vanezis on the shortcomings of the post mortem report (Joint Minute, supra, para 1) might have made a significant impression on the jury in their consideration of the question of reasonable doubt.

Overall conclusions

[121] I am not persuaded that this ground of appeal would have succeeded if the only new evidence had been the procurator fiscal's reports to Crown Office. But that evidence acquires added significance when seen along with that of Professor Gudjonsson and of Professor Busuttil and Professor Vanezis. Bearing in mind how thin the Crown case was, I conclude without difficulty that the evidence of these witnesses is of such significance in both branches that a verdict returned in ignorance of it must be regarded as a miscarriage of justice.

The misdirection ground

[122] This point was not taken at the original appeal. I am not surprised. In those days judges varied in their formulations of the idea of reasonable doubt. The direction in this case was not uncommon. The direction was, however, inaccurate; and the advocate depute has conceded that it was a misdirection, for the reasons given in A(CW) v HM Adv (2003 SCCR 154). The question then is whether it caused a miscarriage of justice. In this case, as in Stillie v HM Adv (1990 SCCR 719) and A(CW) v HM Adv (supra), the trial judge repeatedly emphasised to the jury that they must acquit if there was any reasonable doubt in their minds (Charge, at pp 6, 7, 8, 67, 68, 69). He also specifically mentioned the requirement of proof beyond reasonable doubt in the context of the evidence of the first confession and the sketch, on which the Crown case depended (at p 27). In view of these directions and since the charge was, as counsel for the appellant accepts, scrupulously fair to the defence, I can see no reason to think that the misdirection was of such a serious character as to have caused a miscarriage of justice.

Disposal

[123] I propose to your Lordship and your Ladyship that we should allow the appeal on the fresh evidence ground only and quash the conviction and sentence.


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Abernethy

Lady Paton

[2007] HCJAC 48

Appeal No: XC464/03

OPINION OF LORD ABERNETHY

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

RAYMOND McKENZIE GILMOUR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the Appellant: Shead, Miss Mitchell; Drummond Miller LLP (for Gordon Ritchie & Co, Paisley)

For the Crown: Miss Grahame, AD; Crown Agent

30 August 2007

[124] I am in full agreement with the Opinion of your Lordship in the Chair. For the reasons given by your Lordship I agree that we should allow the appeal on the fresh evidence ground only and quash the appellant's conviction and sentence.


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Abernethy

Lady Paton

[2007] HCJAC 48

Appeal No: XC464/03

OPINION OF LADY PATON

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

RAYMOND McKENZIE GILMOUR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the Appellant: Shead, Miss Mitchell; Drummond Miller LLP (for Gordon Ritchie & Co, Paisley)

For the Crown: Miss Grahame, AD; Crown Agent

30 August 2007

[125] I entirely agree with the Opinion of your Lordship in the Chair and have nothing useful to add.