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RICHARD JOSEPH COUBROUGH'S EXECUTRIX v. HER MAJESTY'S ADVOCATE


Submitted: 01 April 2010

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Carloway

Lord Bonomy

Lord Nimmo Smith

[2010] HCJAC 32

Appeal No: XC326/07

OPINION OF THE COURT

delivered by LORD CARLOWAY

in the reference from the Scottish Criminal Cases Review Commission

RICHARD JOSEPH COUBROUGH's EXECUTRIX

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead, MC Mackenzie; Bruce & Co

Respondent: Clancy QC AD, Balfour; the Crown Agent

1 April 2010

1. General

[1] Richard Coubrough (the appellant) was convicted of the murder of Dorothea Meechan at Glasgow High Court on 2 July 1971 and sentenced to life imprisonment. He sought, and on 5 October was refused, leave to appeal; his ground being vaguely stated as "insufficient evidence and misdirection of the jury".

[2] On 13 June 1999, having served 28 years of his sentence, the appellant applied to the Scottish Criminal Cases Review Commission (SCCRC) on a number of grounds. These included a specific complaint ("D") of misdirection by the trial judge on onus and standard of proof. The SCCRC rejected this, concluding that, considering the charge as a whole, "the trial judge's charge is sufficiently clear in terms of direction to the jury on the matters of burden of proof and reasonable doubt". In terms of decisions dated 19 June 2001 and 25 March 2002, the SCCRC declined to refer the case on any of the grounds advanced. However, the SCCRC reconsidered its decision in March 2005. This time they decided to refer the case to the Court on the basis of fresh evidence from a professor of psychology, which was said to show that police evidence of admissions made by the appellant was not credible.

[3] The appeal was the subject of a hearing, which lasted seven days in May 2006 and a further four days in June 2007, when the Court made avizandum. On 27 February 2008, the Court issued an Opinion in which it refused four grounds of appeal (2008 SCCR 317). However, two grounds of appeal (numbers (1) and (2)) had not been dealt with and remained for consideration. On 28 June 2008, the appellant died. On 27 May 2009, the Court allowed the appellant's sister and executrix to continue with the appeal in terms of section 303A of the Criminal Procedure (Scotland) Act 1995. The Court appointed a further four day diet to be fixed in order that the two remaining grounds, neither of which had been the subject of a referral, be heard.

2. The Evidence

[4] The deceased was strangled at about 12.35 am on Sunday, 28 February 1971, in the vicinity of a bridge spanning railway tracks between Clark Street and McClue Avenue, Renfrew. The deceased would have been crossing the bridge alone on her way home to Kirlandneuk Crescent, having attended a family party in Cockles Loan. Witnesses spoke to hearing a scream coming from the bridge, perhaps from under it, at the material time. The naked body of the deceased was found six weeks later, partially buried some distance away along the railway line. Articles of her clothing, notably her underwear and suede boots, had been scattered over a wide area, some of it near the bridge. The articles had been deliberately cut or torn.

[5] The trial judge produced a report setting out the evidence in short compass in response to the original appeal. That evidence consisted of three important strands, although there were other adminicles:

(a) ADMISSIONS TO THE POLICE

[6] On the morning after being arrested and charged (Monday, 19 April 1971), the appellant asked to see the police officer in charge of the inquiry and told him: "I've been thinking it over and just want to say I didn't murder the woman. It was an accident. She screamed" and "I didn't steal the clothing. I panicked and only took them to get rid of them".

(b) IDENTIFICATION BY THREE WITNESSES

[7] Three witnesses, who were crossing the bridge together, identified the appellant as being on the bridge alone at about 12.35 am. At the trial, the deceased denied having been on the bridge at that time, although he did accept he had been close to it, on Kirklandneuk Road where he lived with his sister, at about 11.20 pm. He had then been on his way to a public house managed by his former mistress, MG, at Fulbar Street. He also accepted that he had returned to his sister's house some time after midnight.

[8] The detail of the identifications is of some significance. First, IL, an eighteen year old nursery nurse, spoke to encountering a man who "looked at us and he walked on, and he turned and stared, and he walked on again, and he turned and stared for a couple of minutes". She identified the appellant in the dock, stating that she was sure it was him. She said that the man had been wearing a jacket similar to one proved to belong to the appellant. She had remarked to others on the bridge: "You'd better watch, there is a queer-looking man over there". The witness had also picked out the appellant at an identification parade, although defence counsel established that she had looked at the parade for a long time before she did so. Otherwise, the cross- examination attempted to demonstrate an absence of street lighting on the bridge, something which the witness was able to rebut under reference to photographs.

[9] CM, a seventeen year old male, had met IL at Gilmour Street station in Paisley and had walked with her and her friend KD to Renfrew. He too identified the appellant in the dock as the person whom he had seen on the bridge. He said "when he passed us he was staring at us, and once we had got to the top he was about half way down. He was still staring at us....[W]e walked on and we were walking down the bridge and we looked over and he was standing down at the bottom of the bridge". CM had also picked out the appellant at the identification parade saying "I think it is number 3", although "not really" in doubt about his identification. He confirmed that he was "quite sure" it was the same man, although not "absolutely certain".

[10] KD said that she had seen the person, who she thought was the appellant in the dock, on the bridge. She had turned round to look at the man when IL had told her that he was staring at them. She had also identified the appellant at the identification parade, in that she thought it was the man but, as she said in evidence, she was not sure. The cross examination of KD consisted of one question, which was assented to, that she could be mistaken in her identification.

(c) CUTTING OF THE CLOTHING

[11] The appellant had appeared on another charge; that of assaulting and raping MP on 9 April 1971 in Gourock and maliciously cutting and damaging her clothing. He had moved out of Renfrew shortly after the murder and taken up with MP. He had admitted cutting up the clothing and was found guilty of that and of assaulting (but not raping) MP. The trial judge refers to "a peculiar similarity between the deliberate cutting of some articles of the deceased's clothing and the cutting of some of Mrs [P's] clothes". The precise nature of the similarity was not explored.

[12] The trial judge made the following comment in his report to the appeal court:

"The value of the evidence of the young people who saw [the appellant] on the footbridge and identified him in Court was for the jury to assess. The crucial matters were the statements made to the police".

He had directed the jury that they could not accept the statements unless they were voluntarily made, not made in reply to questions and were made in circumstances which were fair to the appellant.

3. The Charge and the Grounds of Appeal

[13] The two remaining grounds of appeal complain of misdirection of the jury. It is important to note that the Court does not have the trial judge's comments on these grounds. When preparing his report on the original appeal, the judge had, quite appropriately, stated:

"With regards to the allegation of mis-direction of the jury I am not in a position to comment as I have no information as where [sic] it is said I went wrong".

Now, almost forty years later, the Court is examining specific complaints of misdirection; but it is doing so in the absence of the trial judge's views, which might have thrown much light on the situation. It is also carrying out this examination without knowing what counsel had said to the jury about the issues in the case, which might have put the judge's charge into its proper context.

[14] The first ground is as follows:

"1. Directions as to evidence of the appellant

1.1 The trial judge erred in directing the jury:

(i) that it should disregard the evidence of the appellant if they did not believe him... ; and

(ii) that the appellant required to prove his denial of the charges on the balance of probabilities...

1.2 The effect of the latter direction was to impose an onus on the appellant to prove, on the balance of probabilities, that he had not committed the offences charged. Such a direction was incompatible with the presumption of innocence enshrined in the common law.

1.3 The trial judge ought to have directed the jury that they should acquit the appellant if his evidence raised a reasonable doubt. Furthermore, the trial judge ought to have directed the jury that there was no standard to which the appellant was required to prove his denial of the charges."

The particular directions on onus were as follows:

"There are certain general rules of law, as counsel on both sides have pointed out, which you must observe. The first is that the onus rests on the Crown throughout the case to prove the guilt of the accused. He starts with a presumption of innocence and that persists until it is displaced by proof of guilt. The standard which the Crown must attain is proof beyond reasonable doubt, and reasonable doubt means, as I think the Advocate Depute pointed out, that standard which you would apply in considering important matters in your own lives... Reasonable just means reasonable - within reason. It is not every doubt. On the other hand, if there is some doubt in your minds and that is a material reasonable doubt, then that strikes at the Crown case because the Crown must lift it above that standard.

...

Now, having told you all that, I want to give you a special warning. In this case the accused elected to go into the witness box and give evidence. Now, an accused person who gives evidence in exculpation in the witness box is in a different position to witnesses in the case - at least in a different position to witnesses led by the Crown. An accused person is entitled always to say I did not do it, and if the jury believe him the jury are entitled by our law to acquit him on that statement alone. He does not need to be corroborated. Moreover, if he leads additional evidence or even on his own evidence, the standard required to set up his denial is a lower standard than that required from the Crown in setting up guilt. That is a standard of what we call the balance of probability. Moreover, even if you disbelieve his evidence, disbelieve his denial, still that doesn't in any way lessen the burden on the Crown to prove his guilt beyond reasonable doubt. That is the position the peculiar position of an accused giving evidence on his own behalf. Of course the foundation of what I have been telling you about the accused's evidence is that you believe him. Whether you believe him or not is a matter entirely for you."

...

Let me just remind you of the evidence that we have had about [the murder]. Quite a lot of this is not disputed by the accused, or counsel for the accused, but still the Crown has to establish its case on all material matters beyond reasonable doubt so I must just remind you of it".

[15] The second ground is as follows:

"2. Directions as to identification evidence

2.1 The trial judge erred in failing to direct the jury as to the fallibility of eye witness identification evidence.

2.2 The trial judge ought to have directed the jury that they required to take special care in assessing the evidence.

2.3 This eye witness identification evidence was critical to the Crown case... ".

The trial judge dealt with evidence in general as follows:

"You have got to decide on the credibility of witnesses. That is not my function, it is yours. You have got to decide in relation to witnesses A, B, C and D - this of course is including the accused because he was a witness - do you believe what that particular witness says is true, is he telling the truth. Then there is the other aspect of credibility. A witness may impress you as being conscientious and truthful but you have got to go beyond that. If you don't believe what he is saying then disregard his evidence, but if you form the impression that he is a truthful witness then you have also got to determine as to whether he is a reliable witness, because many a person has seen something take place, they are quite convinced in their own mind of what they saw, and in perfect truth from their point of view they tell you about it. But it may not be true, they may have been mistaken, and yet believe they are telling the truth. So there is two aspects to credibility; there is first of all do you believe the witness is telling the truth as he or she sees it, and, second, is that statement itself true or are the facts narrated true".

Specifically on the evidence implicating the appellant, he said:

"Now the real problem in this charge for you to decide is whether you think the Crown - there is little doubt it was murder - have proved that the murderer was the accused. How do they make that out. There seems to be three lines of approach. Firstly, that the accused was in the locality of the footbridge about the time...

Then we come to more material evidence. Three witnesses who were [IL, CM and KD] they said they were crossing over that footbridge about that time when a man passed them, although he was going in the other direction... You heard their evidence. [IL] in particular seemed to have been pretty definite that the accused was that man. [Counsel for the accused] has commented on the undoubted fact that it wasn't an unqualified identification. One of them said, 'I think I believe that is the man' and the other one said it was like him. But the question as to whether you think he was properly identified by these three witnesses or by one or more of them is a matter for you. The Crown tables that evidence of identification of the accused as being at the foot bridge at the crucial time".

The trial judge then went on to deal with what he described to the jury as the second line of evidence, namely the admissions, and the third line, being the cutting of the clothing. He moved on to deal with the defence case, which he expressed thus:

"The defence of course is that while the accused admits that he was at Mrs [G's] house, he, the defence, disputes the evidence of the witnesses [L, M and D] about identification. He says he was not out that night. The Defence challenges the evidence of the police in regard to the statements. Thirdly, he says that he neither killed Mrs Meechan nor did he rob her. All these problems appear to me...to turn on the view you take of the credibility and the reliability of the witnesses".

4. Submissions

(a) APPELLANT

[16] The appellant had lodged a short written submission in advance of the appeal hearing which can be consulted if required. The main presentation of the argument was in oral submission. The appellant began with the second ground of appeal. The trial judge ought to have given directions on the need to take care when assessing identification evidence (Webb v HM Advocate 1996 JC 166, LJ-C (Ross), delivering the Opinion of the Court, at 171-172 and applying the Practice Note of the Lord Justice General (Emslie) issued on 18 February 1977; Beaton v HM Advocate 2004 SCCR 467, Lord Kirkwood, delivering the Opinion of the Court, at paras [24]- [27] and following McAvoy v HM Advocate 1991 JC 16, LJ-C (Ross), delivering the Opinion of the Court, at 26). Such directions were always required when identification was in issue. The Practice Note had resulted from the concerns in the 1970s about identification evidence.

[17] On the first ground of appeal, paragraph 1.1.(i) was not pressed. The appellant drew attention to the proximity of the trial to that in Lambie v HM Advocate 1973 JC 53; the appeal in which had corrected an erroneous statement of the law in relation to onus of proof. That statement had stemmed from Lennie v HM Advocate 1946 JC 40 and Owens v HM Advocate 1946 JC 119, which had confirmed that the onus of proving a special defence was on an accused. Had the appellant been able to present his original appeal, the Court would have held that there had been a misdirection where the trial judge had said that the appellant required "to set up his denial" on the balance of probability. That was "trenching" on the presumption of innocence (Henvey v HM Advocate 2005 SCCR 282, LJG (Cullen), delivering the Opinion of the Full Bench, at para [8] and following R v Whyte (1988) 51 DLR (4th) 481, Dickson CJC at 493). It could not be asserted that, if the jury had been properly directed, they would inevitably have reached the same verdict (Touati v HM Advocate 2008 SCCR 211, LJG (Hamilton), delivering the Opinion of the Court, at paras [32]-[35]). Applying current standards, a miscarriage of justice had occurred.

[18] It was contemporary standards that required to be applied (Boncza-Tomaszewski v HM Advocate 2000 SCCR 657, LJG (Rodger) at para [5]; Campbell v HM Advocate 2004 SCCR 220, LJ-C (Gill), delivering the Opinion of the Court, at para [98]; Bentley (decd) (2001) 1 Cr App Rep 307, Lord Bingham LCJ at 310, 321, 326-7). In appeals based upon a change in the understanding of the law presented outwith the normal time limit, the practice in England is to refuse leave to appeal (R v Cottrell [2007] 1 WLR 3262, Judge P at para [42] et seq., quoting from A v Governor of Arbour Hill Prison [2006] 4 IR 88; Cooper: Appeals, Referrals and Substantial Injustice (2009) Crim LR 152). But if a case were referred back to the Court by the Criminal Cases Review Commission, today's standards would be applied (Johnson [2001] 1 Cr App Rep 408, Lord Woolf CJ at 413; cf his reference to Gerald [1999]

Crim L R 315, Rose VP following Ward (1993) 96 Cr App Rep 1, Glidewell LJ at 23). The declaratory theory, whereby the Court's decisions did not change the law but declared what it had always been, was binding (Lord Advocate's Reference (No 1 of 2001) 2002 SCCR 435, Lord McCluskey (dissenting) at paras [4]-[5]). The Court did not normally prospectively overrule previous decisions (In re Spectrum Plus [2005] 2 AC 680, Lord Nicholls at para [12], quoting from West Midland Baptist (Trust) Association v Birmingham Corporation [1970] AC 874, Lord Reid at 898-899).

[19] In closing, the appellant made reference to a Devolution Minute, which had been lodged about a week before the hearing. He said that he was asking the Court to determine a devolution issue, which appeared to be a complaint about the notification given that the respondent's argument at the appeal would be that the Court should not apply its current understanding of the law or current standards of fairness to the issues. No substantive argument was presented beyond the content of the Minute.

(b) RESPONDENT

[20] On the first ground, any allegation of misdirection had to be judged in the context of the charge as a whole. The trial judge had made it clear to the jury that the Crown required to prove its case beyond reasonable doubt. He had told them that, if they accepted the appellant's account, they should acquit him. He did not say that there was an onus of proof on the accused; simply that there was a lower standard of proof to "set up his denial". It was accepted that this may have been unintelligible, if taken in isolation. But read in context, it could not be said that a miscarriage of justice had occurred.

[21] The direction about the balance of probability would not be given today. It was a shortcoming or defect, which could be classified as a misdirection in modern terms. Applying current standards, there might have been a departure from the ideal, but that did not necessarily involve a misdirection. Even if it did, that did not mean that there had been a miscarriage of justice. The directions had been in accordance with the standards of the day. Thus, in terms of Lennie v HMA (supra), at the time of the trial, the onus of proving an alibi had fallen on the accused. But failure to establish an alibi did not affect the overriding onus on the Crown to establish its case against the accused. That was properly reflected in the trial judge's charge (see also Owens v HMA (supra); Dickson v HM Advocate 1950 JC 1). The jury could take a two stage approach. First, they could decide whether an accused had been telling the truth. If they accepted that he was, they would acquit. Secondly, if they were not satisfied that he was telling the truth, they still required to find his guilt proved beyond reasonable doubt.

[22] The appeal in Lambie v HM Advocate (supra) on the basis of a misdirection on the special defence had not succeeded (see p 55). Furthermore, the trial judge did not say the same as the sheriff (Maguire QC) had said in Lambie; viz. that the jury did not require to consider the special defence as there had been no corroboration and that there was an onus on the accused. The saving feature of the charge in Lambie had been that, notwithstanding plain misdirections, the sheriff had told the jury that, if "the other evidence" produced a reasonable doubt, they should acquit as it remained for the Crown to prove guilt beyond reasonable doubt. The trial judge had directed the jury appropriately along similar lines. Henvey v HM Advocate (supra) raised a different point, since the directions there had placed a burden on the accused and indicated to the jury that, if they did not believe him, there was no defence available.

[23] The test for a miscarriage of justice was not inevitability of an identical verdict (Touati v HM Advocate (supra)) but whether the appellant could demonstrate a "real possibility" that the verdict of the jury could have been different (McInnes v HM Advocate 2010 SLT 266, Lord Hope of Craighead at para [20], [24], cf Lord Rodger of Earlsferry at para [30] "a jury"). It was a broad and flexible test. In the present case there was the admission together with three identifications plus the circumstantial corroboration relative to the cutting of the clothes. When the charge was read in the context of the evidence, no miscarriage of justice had occurred.

[24] On the second ground, at the time of the trial there was no requirement to give special directions regarding eye witness identification evidence (Bennett v HMA 1976 JC 1, LJG (Emslie) at 4). The Lord Justice General's later Practice Note of 18 February 1977 was simply appropriate guidance, given some time after the appellant's trial, on directions which could be given in certain circumstances; notably where the crucial evidence was that of identification (see McAvoy v HMA (supra), LJ-C (Ross) at 26; Holland v HM Advocate 2003 SCCR 616, LJ-C (Gill) at para [21]; cf Blair v HMA 1993 SCCR 483, LJG (Hope) at 486; Webb v HMA (supra), LJ-C (Ross) at 172). There was no fixed formula. Each charge must be considered in its context and the need for a particular direction will depend on the circumstances of the case (Kearns v HMA 1999 JC 124, LJ-C (Cullen) at page 126; Ferguson v HMA 2000 SCCR 954, LJG (Rodger) at para 12; cf Beaton v HMA (supra) Lord Kirkwood at para [26]).

[25] The significance of the identification evidence had to be seen, in the context of the case as a whole, as supportive of the evidence of the admissions. The identifications were of good quality, even by modern standards, from three different persons. There were none of the negative features which were present in the cases where a direction to be cautious required to be given. The trial judge had given general directions regarding reliability and had made it plain that witnesses might be mistaken. Although he had not expressly stated that the jury should take special care in assessing the identification evidence, the issue was to the forefront in the charge, as it had been in Blair (supra). The jury's attention had been also drawn to the defence approach as it was in Ferguson (supra). The jury must have appreciated that eye witness identification evidence was fallible and that they required to take care in assessing that evidence. The directions contended for by the appellant would have had no practical effect on the verdict. Their absence cannot therefore have resulted in a miscarriage of justice. The appellant's counsel at the trial had been a very experienced one and, if criticisms of the identifications required to be made, he would have made them.

[26] The Court had the benefit of an extremely detailed and closely reasoned written submission from the Crown on the subject of whether a miscarriage of justice had to be assessed according to the law and practice at the time of the trial or at the time of the appeal. The detail, which draws extensively from cases in England, can be consulted if necessary and only an outline of the written submission, as explained further in oral argument, is attempted here.

[27] The Court should make an assessment of whether there has been a miscarriage of justice according to the standards applying at the time of the trial and is entitled to take that an assessment into account. In general, a court ought not to hold that there has been a miscarriage of justice if there would have been no miscarriage according to the standards which applied at the time of the trial. The dictum of the Lord Justice General in Boncza-Tomaszewski v HMA (supra, at para [5]) went too far. It was, first, obiter, since the case was not one which involved a change in the law between the time of the trial and the appeal. Secondly, it was not of general application in all cases and proceeded on the basis of a concession. Thirdly, its reasoning was flawed. The reasoning was that: (i) section 194B of the 1995 Act required the appeal court to consider an appeal by reference to present standards; and (ii) the pronouncements of Lord Bingham LCJ in Bentley (supra) should be adopted. The dictum suggested that section 194B would be ineffective if modern standards were not used. But there is seldom any obvious imperative to deal with matters by modern standards rather than those at the time of the trial. The adoption of the reasoning in Bentley is an unsatisfactory basis for concluding that appeals should be considered according to modern standards. First, the criterion for quashing a conviction applied by the Court of Appeal in England differs from that applied by the Court in Scotland (section 2(1) of the Criminal Appeal Act 1968; R v Lyons [2003] 1 AC 976, Lord Millett at para 95; cf Harper v HMA 2005 SCCR 245 Lord Osborne, delivering the Opinion of the Court, at para 38). Secondly, the Court of Appeal in Bentley had simply stated a number of conclusions without any attempt to justify them. Thirdly, the approach to "change of law" cases had been the subject of considerable development in England since Bentley.

[28] Bentley had not been based on any change of law (R v Cottrell [2007] 1 WLR 3262, Judge P at para 48). But underpinning its reasoning may have been the "declaratory theory of the common law", which was not universally popular (eg Stallard v HMA 1989 SLT 469; Lord Advocate's Reference No 1 of 2001 2002 SCCR 435; Lord Reid: "The Judge as Law Maker" (1972) XII JSPTL 22; and on prospective overruling R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19). The theory belonged within the doctrine of precedent and there was no need to give such a highly technical legal theory greater application. Lambie (supra) marked a change in practice but that did not mean that post Lambie practice should govern this appeal.

[29] The English Court of Appeal had adopted the Bentley approach in R v Johnson [2001] 1 Cr App Rep 408 and had stated that it had to apply the standards of today (para 22). But it does not in fact always apply only modern standards (R v King [2000] Crim LR 835, Lord Bingham CJ at 837; R v Lyons (supra), Lord Bingham at paras 15 to 18; R v Hanratty [2002] 2 Cr App Rep 30, Lord Woolf CJ at paras 98-100; Hussain v R [2005] EWCA Crim 31).

[30] Unlike the English test of whether a conviction is unsafe, the Scottish test of miscarriage of justice permits the court to consider broader issues such as the public interest and the desirability of certainty and finality in the criminal justice system. In England these considerations are taken into account when the Court of Appeal considers applications for leave to appeal late (R v Ramsden [1972] Crim LR. 547; R v Mitchell [1977] 1 WLR 753; R v Kansal (No 2) [2001] 3 W.L.R. 1562, Lord Steyn at para 26, Lord Hutton at para 103, following Minto and Cuthbert v Police [1990-92] 1 NZBORR 208, Robertson J at 214). It is only in rare cases that the Court of Appeal allows a late appeal in change of law cases, even in circumstances where the applicant has been convicted of something which is no longer regarded as a crime (R v Hawkins [1997] 1 Cr App Rep 234; R v Campbell [1997] 1 Cr App Rep 199; R v Lambert [2001] 2 WLR 211; cf R v Benjafield [2001] 3 WLR 75).

[31] Refusal of leave in change of law cases is based on public policy considerations such as the need for finality. Such considerations are not taken into account when determining whether a conviction is unsafe. They are therefore left out of account in cases which have been referred by the CCRC (R v Kansal [2001] 3 WLR 751). In recent years, the practice of the CCRC, in referring cases which would not have been granted leave to appeal out of time and thereby circumventing the Court of Appeal's practice, has become increasing controversial (R v R & Others [2007] 1 Cr App Rep 10; R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2007] 1 Cr App Rep 395; R v Cottrell (supra) considering A v Governor of Arbour Hill Prison (supra)).

[32] Finality and certainty in the administration of criminal justice can be taken into account by this Court when it determines whether there has been a miscarriage of justice (see Reid v HMA [2007] HCJAC 70, Lord Eassie at para [46]; Ruddy v HMA 2006 SCCR 151, Lord Hope at para 8; Kelly v HM Advocate 2010 HCJAC 20). Following the approach suggested by the appellant would be detrimental to the administration of justice in Scotland. If this Court were obliged to approach all appeals according to modern standards, numerous convictions from the past might be susceptible to successful appeal. Similarly, any future developments in the law might result in uncertainty regarding the status of convictions recorded. Such changes are to be expected (R v H [2004] 2 AC 134, Lord Bingham of Cornhill at para 11).

5. Decision

(a) GENERAL APPROACH

[33] Section 194C of the 1995 Act provides that the SCCRC may refer a case to the Court if they believe that (a) "a miscarriage of justice may have occurred" and (b) "it is in the interests of justice" to do so. In terms of section 106(3), an appellant can bring under review "any miscarriage of justice". There is no other provision in the Act governing what test the Court is to apply in determining whether to "set aside" the verdict of the trial court and to "quash" the conviction (ss 118(1)(b)). The sole basis for reaching a determination is that the Court is satisfied that a miscarriage of justice has occurred. That exercise has to be carried out by the Court without regard to such policy considerations as certainty or finality in the criminal process. Such considerations are for the SCCRC to take into account under the heading of "the interests of justice" when deciding whether to refer a case. It is to the SCCRC that Parliament has entrusted that responsibility.

[34] When assessing whether a miscarriage of justice has occurred, the concept which this Court will normally apply is its current, or modern, appreciation of what amounts to justice, including fairness in the trial proceedings. It only has that appreciation of justice, even if it is aware that different judicial attitudes held sway in former times. It cannot without considerable difficulty attempt to place itself into an historical context or try to apply the notions of appellate judges of a bygone era. Fairness is indeed an evolving concept (R v H (supra) Lord Bingham at para 11) and it is its evolved state that falls to be considered. This is, in essence, what the Court sought to stress in Boncza-Tomaszewski v HM Advocate ((supra) at para [5]). Boncza-Tomaszewski was decided on the basis of an absence of corroboration. The same decision ought to have been reached at the time of the original appeal, since there had been no change in the law on that matter. There was no contradictor in relation to whether to apply modern standards, the matter being effectively conceded by the Crown. That was also the position in Campbell v HM Advocate (supra), where the Lord Justice Clerk (Gill), when dealing with a complaint of misdirection, accepted (at para [98]) that the Court must address the issue according to the judicial standards of today. It follows also from what was said in these two cases that, with the exception of statutory amendments to the common law between the date of the original appeal and any subsequent appeal hearing, it is the Court's present understanding of the law which must be applied.

[35] But this does not mean that the Court has to regard the trial as having occurred at the same time as the appeal hearing. Were that to be the case, the Court would be creating an unnecessarily artificial backdrop for its assessment. The appellant's trial did not occur yesterday but several decades ago. In looking to see whether a miscarriage of justice has occurred, the Court must have regard to the practices and procedures current at that time in determining whether what happened can be said to amount to a miscarriage of justice.

[36] The Court appreciates that it must, in general, exercise caution before adopting the approaches of other jurisdictions where the tests for assessing appeals are different. It is clear from the many cases cited that the Court of Appeal in England is governed not only by different statutory provisions but has also adopted practices not current in Scotland. But in setting out the general principle to be applied in cases such as the present, the Court is unable to improve upon the phraseology of Lord Woolf CJ in R v Hanratty (supra), where he states:

"98. ... For understandable reasons, it is now accepted in judging the question of fairness of a trial, and fairness is what rules of procedure are designed to achieve, we apply current standards irrespective of when the trial took place. But this does not mean that because contemporary rules have not been complied with a trial which took place in the past must be judged on the false assumption it was tried yesterday. Such an approach could achieve injustice because the non-compliance with rules does not necessarily mean that a defendant has been treated unfairly. In order to achieve justice, non-compliance with rules which were not current at the time of the trial may need to be treated differently from rules which were in force at the time of trial. If certain of the current requirements of, for example, a summing up are not complied with at a trial which takes place today this can almost automatically result in a conviction being set aside but this approach should not be adopted in relation to trials which took place before the rule was established. The fact that what has happened did not comply with a rule which was in force at the time of trial makes the non-compliance more serious than it would be if there was no rule in force. Proper standards will not be maintained unless this Court can be expected, when appropriate, to enforce the rules by taking a serious view of a breach of the rules at the time they are in force. It is not appropriate to apply this approach to a forty year-old case.

99. Another difference between a case such as this and a case which has only been tried recently is that this Court can expect in the latter type of case to be provided with an explanation for situations which give rise to a suspicion of possible impropriety. There may be an explanation for what happened which shows there is no cause for suspicion, but this may be impossible to discover due to the passage of time....

100. The question of whether a trial is sufficiently seriously flawed, so as to make a conviction unsafe because it does not comply with what would be regarded today as the minimum standards, must be approached in the round, taking into account all the relevant circumstances..."

It is this approach (and see also paras 203, 207 and 213), of looking at matters "in the round" and "taking into account all the relevant circumstances", that this Court will adopt in assessing the grounds of appeal.

(b) GROUND (1) AS A MISDIRECTION

[37] So far as the common law is concerned, there has since the trial been no change in the principle that an accused person is entitled to the presumption of innocence and that, before he can be convicted on any charge, a jury requires to be satisfied of his guilt "beyond reasonable doubt". There is no doubt that, both forty years ago and now, if a jury were not directed adequately on these two critical matters, this Court would hold that there had been a miscarriage of justice.

[38] The thrust of the appellant's submission was that Lambie v HM Advocate (supra) had declared the common law to be different from that in Lennie v HM Advocate (supra) and Owens v HM Advocate (supra). Thus, upon the declaratory theory, this jury must have been misdirected on the law, because they had been charged upon the basis of the earlier understanding of the position. There are two problems with this argument. The first is that Lambie did not change the common law in relation to either the presumption of innocence or the standard of proof required for a conviction. What it did do was to alter the practice in relation to the precise manner in which juries were to be directed.

[39] Prior to Lambie, there was a conflicting practice in solemn proceedings on how to direct juries in situations where either a special defence had been lodged or, it seems, where an accused had been allowed to state, without the requisite notice, a defence equivalent to a special defence. The Lennie and Owens approach, which had, after all, been endorsed by the combined formidable talents of Lord Justice General (Normand), Lord Justice-Clerk (Cooper), Lords Carmont and Jamieson, was that the jury ought to look first at the substantive defence. If they were satisfied, on the balance of probability, that the defence had been made out then they should acquit. Secondly, if they did not find that defence proved, they still had to address themselves to the Crown evidence and "must not treat the onus as transferred or affected by the failure of the defence..." (Lennie, LJG at 80). That defence could still "play an essential part in checking, modifying, or rebutting the Crown evidence and so used it may certainly have the important result of inducing a reasonable doubt of whether the Crown has proved the guilt of the panel" (LJG at 81). If it did that, the accused had to be acquitted notwithstanding his failure to prove, in a formal sense, the defence. As was said in Owens (LJG at 124), the onus remained on the Crown throughout to prove the guilt of the accused beyond reasonable doubt:

"It may therefore be necessary for the presiding Judge, not only to ask the jury to consider whether the special defence has been made out, but to ask them also to consider whether it has not had the effect of so shaking reliance on the Crown evidence as to warrant an acquittal from the charge" (LJG at 124-5).

It was this two stage approach that the Court under Lord Justice General (Emslie), disapproved in Lambie. Rather, the focus in directions was to be on proof beyond reasonable doubt alone and any special defence was to be regarded purely as a notice to the Crown.

[40] The second problem for the appellant is the actual decision in Lambie. The Sheriff had directed the jury that, in order to succeed in his special defence of incrimination, the appellant had to produce corroborated evidence. He had not done so. The Sheriff continued:

"There is no corroborated evidence which would entitle you to come to a decision on the special defence of impeachment... Therefore you will not consider that special defence".

However, he then said, in accordance with the two stage approach:

"Now, in saying that I am not in any way saying that you have not to consider the allegations - because that is really what his evidence amounted to - with regard to other people being involved. All I am saying is that there is insufficient evidence to find the accused not guilty on the basis that he has made out a special defence of impeachment. The other evidence, and the inference which [the defence agent] invited you to draw from the evidence relating to some other people having been involved, is still before you, and if that evidence produced in your minds a reasonable doubt then, of course, you will acquit the accused because, as I say, it is for the Crown to prove beyond reasonable doubt that the accused person is guilty".

[41] When the Full Bench came to consider whether the remarks constituted a misdirection, they said (per LJG at 55):

"Upon this question we have come to be of opinion, albeit with some hesitation, that, standing the practice to which we have referred, the charge on the special defence read as a whole would sufficiently inform an intelligent lay jury, in spite of the quoted sentence [not to consider the special defence], that they were to consider the applicant's evidence of incrimination and to acquit if it produced in their minds a reasonable doubt of his guilt. In those circumstances we would not have been disposed to sustain the appeal on [this] ground".

[42] The Court is of the view that the same result must be reached in this case. Had the trial judge's charge been delivered today, there is little doubt that his remarks about the appellant requiring to "set up his denial" to the standard of "probability" would be regarded as a misdirection. But the reason for that would be that the trial judge had disregarded the views of the Full Bench in Lambie, which expressly tell trial judges exactly how to direct juries where an accused person has lodged a special defence or, indeed, simply given evidence on his own behalf. In this case, despite some initial uncertainty, it is clear that the appellant did not actually lodge any special defence of alibi. But, for reasons which remain lost in the mists of time, he was allowed to give evidence not only that he was not on the bridge at the material time but that he had, by then, returned to his sister's house and retired to bed. The trial judge directed the jury in accordance with the practice of the time. What he said would not have been regarded as a misdirection. In that regard, it is not without significance that no specific grounds of appeal were lodged complaining of a misdirection on this point. Given the experience of both counsel and agents for the appellant, had any obvious misdirection occurred, the Court has little doubt that a specific appeal point would have been taken.

[43] Following Lambie, the Court concludes that the directions of the trial judge were sufficiently clear to inform the jury that, whatever they thought of the appellant's denial of guilt, the appellant had the benefit of the presumption of innocence and they required to be satisfied of the appellant's guilt beyond reasonable doubt. In particular, the trial judge told the jury that the onus lay on the Crown throughout the case to prove the guilt of the accused. He told them that the standard of proof which the Crown required to attain was proof beyond reasonable doubt. He told the jury that if they believed the appellant then he could be acquitted on his evidence alone. Most important, he said that, "moreover" even if they did not believe the appellant, that did not lessen the burden on the Crown to prove his guilt beyond reasonable doubt. He repeated that the Crown had to establish its case "on all material matters" beyond reasonable doubt. Whatever the jury might have made of his reference to probability in setting up a denial, the Court has no difficulty in holding that, looking at the charge as a whole, the jury were adequately directed on the presumption of innocence and the standard of proof being beyond reasonable doubt. It agrees entirely with the SCCRC that there was no material misdirection on these points.

(c) GROUND (2) IDENTIFICATION MISDIRECTION

[44] Where identification is in issue, juries are now routinely cautioned to be careful when assessing such evidence because of the risk of mistakes being made. In issuing the Practice Note of 18 February 1977, the Lord Justice General (Emslie) was making the general point that juries ought to "receive such guidance and assistance as the presiding judge can properly afford" to a jury when assessing evidence "of material consequence" (para 1). He used identification as a "typical example" but in the specific situation where:

"the only evidence inculpating the accused...is evidence of visual identification by witnesses in circumstances in which their opportunity for accurate and reliable observation of the perpetrator has been limited in time or otherwise or merely fleeting, and where the accused was not previously known to them, or where memory may have been impaired for one reason or another".

In such, and other cases where evidence may be of doubtful quality, the Lord Justice General advised trial judges to continue to follow the sound practice:

"(i) of reminding the jury of the vital importance of approaching the assessment of the weight which ought to be given to the evidence in question with particular care;

(ii) of assisting the jury by indicating or suggesting for their consideration the tests which in the particular circumstances of the case they could usefully apply to that evidence to measure its quality and reliability and thus reach a sound conclusion on whether to accept, reject or discard it".

These cautionary remarks thus apply not just to identification evidence but to all sorts of evidence where an assessment of its reliability is essential and there is cause to doubt that reliability. But they do not prescribe a formula which must be used every time such evidence is adduced (Blair v HM Advocate (supra) LJG (Hope) at 486).

[45] It is clear that each case will depend upon its own facts and circumstances (Kearns v HM Advocate (supra), LJ-C (Cullen) at 126). A trial judge has to gauge whether and to what extent it is desirable to give a jury a cum nota warning in relation to particular testimony. Care must be taken not to patronise the jury, to offer them glimpses of the obvious or to trespass unnecessarily into their province. But where the only evidence inculpating an accused is identification evidence and there is an objective reason to question its reliability, current practice requires that the trial judge should give the jury directions indicating that they should take care in assessing that evidence (Webb v HM Advocate (supra), LJ-C (Ross) at 172; Beaton v HM Advocate (supra), Lord Kirkwood at [27]). The precise choice of words to convey that indication is very much a matter for the trial judge's own style and use of language. Just what more than a general caution is required will again depend upon the particular evidence in issue. In a straightforward case, little more than a broad statement on reliability of testimony may be needed (McAvoy v HM Advocate (supra), LJ-C (Ross) at 26).

[46] This was not a case in which the only evidence inculpating the accused was that of identification. Rather, as the trial judge reported, the "crucial" evidence was that of the police relative to the admissions. The identification evidence served primarily only to provide one of at least two strands of potential corroboration. Its context was that it put the appellant on the bridge at or about the relevant time. But the appellant accepted that he was at least in the area of the bridge that night. The evidence did not carry with it any particularly doubtful aspects, such as the fleeting glance, poor lighting or the witnesses being under the influence of drink. The question of whether the witnesses knew the appellant was not explored in evidence. In these circumstances, this was not a case where an emphatic warning was merited. As it was, the trial judge told the jury about the difference between credibility and reliability. The main context for such a direction must have been the identifications. Reliability, as distinct from credibility, hardly came into play in relation to the police evidence on the admissions. Neither credibility nor reliability seems to have had particular significance in connection with the clothing. The judge was directing the jury that, generally in relation to the identifications, witnesses could be trying to tell the truth yet get it wrong. He went on specifically to deal with the evidence of the three witnesses and drew the jury's attention to the criticisms of the identifications made by the appellant's counsel in his speech. In all these circumstances, the directions given were adequate, whether judged by modern standards or those pertaining prior to the Practice Note. This ground of appeal must therefore fail.

(d) MISCARRIAGE OF JUSTICE

[47] Even if the Court had held that there had been a material misdirection either on onus and standard or identification, it would have to be satisfied that a miscarriage of justice had occurred before it could allow the appeal and quash the verdict of the jury. In carrying out that exercise, it would have applied the test of whether there was a "real possibility" that, had the directions been faultless, a different verdict would have been returned. In this context, the Court must look at whether a different verdict would have been returned by the particular jury that heard the case (McInnes v HM Advocate (supra), Lord Hope at paras [20] and [24], Lord Brown at para [35], Lord Kerr concurring with both at para [41]) rather than a hypothetical modern jury hearing all the evidence anew (Lord Rodger at para [30]; cf Lord Walker who agreed with both Lord Hope and Lord Rodger).

[48] If that is so, the starting point here must be that the jury accepted that the appellant had made the admissions attributed to him and that these admissions had been fairly obtained. If the jury were to regard the admissions as true, the only conclusion which they could have drawn was that the appellant had confessed to killing the deceased. In determining whether to accept the admissions as true, and whether there was corroboration sufficient to merit a conviction, the jury would have had regard to the identification evidence. As outlined above, there was little room for suggesting that all three identifications were in any way of doubtful quality. They were not. The three witnesses all had ample time in which to observe the man on the bridge. The lighting appears to have been adequate. All three identified the appellant at the identification parade, albeit not all in an unqualified way. It is not surprising that, when it came to cross-examining the third witness, senior counsel elected to ask only one broad, formal question. But if there had been criticisms to make of the identifications, the Court has little doubt that they would have been made forcefully to the jury in the defence speech.

[49] In short, even if the trial judge had given the jury more particular directions on identification and had omitted his remark on probability, there is no real possibility that any other verdict would have been returned. The Court is satisfied that no miscarriage of justice occurred and that the appellant was rightly convicted.