Lord Justice General

Lord Hamilton

Lady Cosgrove

Appeal No: XC455/03












Appellant: Findlay, Q.C., McLaughlin; George Mather & Co.

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

4 November 2003

[1]The appellant has appealed against his conviction on a charge of murder and a charge of culpably and recklessly attempting to set fire to furniture in a house at Larbert. According to the murder charge, he entered the house uninvited and assaulted the deceased by repeatedly striking him "on the head and body with an instrument or instruments to the Prosecutor unknown", and set fire to his body, whereby he was so severely injured that he died on the following day.

[2]The deceased, Lawrence Haggart, who was 15 years of age, lived in the house with his mother and two brothers, John and Dennis, who were 17 and 12 years of age respectively. Dennis and the deceased shared a bedroom upstairs.

[3]At the trial John gave evidence that on the evening of 15 March 1996, when he was alone in the house, he heard the deceased returning about 10.30 p.m. He shouted out to him and the deceased answered. He heard him go up to his room and then return downstairs. About five minutes later Dennis came home. John went downstairs and spoke to Dennis, at which time the deceased was standing in the livingroom alone. John told Dennis to go to bed. He himself went to his room, but came downstairs later. The deceased was then sitting on a sofa reading a newspaper. John went back to his room. Later he was aware that Dennis went downstairs and he heard the banging of a cupboard door in the kitchen. He also heard the deceased speaking to Dennis. He fell asleep. Some time later he awoke and found that there was smoke in his room. He went out onto the landing, and heard a noise like snoring or heavy breathing from downstairs. When he went down he found that the smoke was coming from the livingroom which was in darkness. The deceased was lying on the floor, breathing heavily and not moving. His feet were on fire. Something had been piled there and set alight. The witness pulled him from the fire and doused it. He noticed that the front door was open. He looked out but saw no one. It was about 1.20 a.m. He went upstairs and woke Dennis. The deceased was then taken to hospital.

[4]Dennis gave evidence that the deceased was sitting on the sofa when he returned home about 10.35 p.m. The witness went to bed. He thought that the deceased had come into their bedroom and removed the duvet. Later John woke him up. He went downstairs and saw the deceased lying on the floor in the livingroom. He was in his underwear, and the duvet was on the sofa. The front door was open.

[5]Evidence was given by an experienced fire officer that what he found was consistent with a lighter having been applied to the sofa, after which flames had fanned upwards. He was of the opinion that this fire had been started deliberately. There was a separate fire which had been set on the carpet. Either fire could have led to the house and its contents being consumed.

[6]The cause of death of the deceased was blunt force trauma to the head caused by a very severe blow or blows with a heavy object, which caused serious skull fractures. The injuries were consistent with having been caused by a piece of slab which was found at the side of the house. Six days later a police officer went to the house, where, he said, he found a hammer.

[7]On the day of the fire the officers went to a caravan park in Denny where the appellant lived in a caravan. The appellant went with them to Falkirk Police Office, where he gave a statement in which he said that he had driven to Edinburgh the previous night, and had been there with a man at the time when the murder had taken place.

[8]Police enquiries into the murder did not reveal any suspect. In June 1997 it was decided that the available evidence should be reviewed. This led to the appellant being again questioned. According to the evidence given by a number of police officers, the appellant was interviewed on a number of occasions, both on and off tape. Their evidence was that while off tape he had admitted killing the deceased, and offered to take them to where he had buried his clothing; that he took them along a route which he had walked from the caravan park, and eventually pointed out the house of the deceased; that he also agreed to give a voluntary statement which was recorded in a notebook; that in that statement he made detailed reference to a number of matters; that, however, he refused to sign the statement; and that later that day the appellant requested money from his belongings to "put flowers on that boy's grave".

[9]Prior to the trial notice of two special defences were intimated on behalf of the appellant. One was of alibi, in accordance with his original statement to the police, and the other was of incrimination of Dennis Haggart. At his trial the appellant gave evidence on his own behalf in which he said that the statement which he had made to the police on the day of the murder was true, and that the incriminating statements which had been attributed to him by the police witnesses were fabrications made up by them. It should be added that the Crown led evidence from a witness, James Hall, who lived in a caravan next to that of the appellant. He gave evidence that he had heard the appellant returning in his car between 10 and 11 p.m. on the night of the murder. The witness said that he put out his rubbish shortly before 1.30 a.m., at which time the appellant's car was still at his caravan. He had not heard the sound of it moving between these times.

[10]The first ground of appeal relates to the fact that the trial judge cautioned Dennis Haggart, after he was called as a Crown witness and sworn, that he did not need to answer any question the answer to which might tend to incriminate him. Before doing so the trial judge asked the Advocate depute whether he was right in thinking that he had to give the witness a warning and the Advocate depute confirmed that this was so.

[11]For the appellant Mr. Findlay submitted that when the Crown elected to call Dennis Haggart as a witness, they abandoned all prospect of being able to prosecute him in respect of the murder. It was inconceivable that they could subsequently prosecute a person who had been incriminated in respect of the same crime at an earlier time and had given evidence as a Crown witness. Immunity extended to such a person. Hence he was not entitled to refuse to answer any questions. The warning would have had an effect on what he said in evidence.

[12]In our view this argument is without merit. It is well-settled that the measure of a witness's immunity from prosecution depends on whether he is led as a Crown witness and as an accomplice in the crime that is charged. In that event his immunity covers only the libel in support of which he has given evidence (O'Neill v. Wilson 1983 J.C. 42 and Cochrane v. H.M. Advocate 2002 S.C.C.R. 1051). In the present case, Dennis Haggart was a Crown witness, but was not adduced as an accomplice in the crime with which the appellant was charged. He did not enjoy immunity.

[13]The remaining grounds of appeal relate to the trial judge's charge to the jury. Mr. Findlay said that it was not in dispute that the deceased had been murdered, or that the person who had perpetrated the murder was also responsible for the fires in the house. The critical question was whether the appellant was the perpetrator. There was no eye witness or forensic evidence which incriminated him. There was also no direct evidence of any association between him and the deceased. The case against him depended on whether the jury accepted the police evidence as to what he had allegedly said to them but which was not recorded on tape. He emphasised that this called for care in the giving of directions to the jury.

[14]Mr. Findlay pointed out that, after having given directions to the jury on the law to be applied, the trial judge went on to complete his charge on the following day. He stated that it was not his intention to sum up or go over the evidence on which they had been addressed by the Advocate depute and counsel for the appellant. However, he said that there were one or two directions which he intended to give to them. It is to these directions that the criticisms advanced by Mr. Findlay were directed. For convenience we will set out a short summary of the successive passages in the charge, together with the contentions for the appellant.

Transcript 18F-19C

[15]The trial judge said that he proposed to start with the way in which the police investigation had developed. He did so for two reasons. The first was because counsel for the appellant "chose, no doubt advisedly, to make some very serious and grave criticisms about the actions of certain police officers in the conduct of that investigation". The second was because the only evidence on which the Crown was able to rely in seeking a conviction consisted of alleged incriminating statements and confessions made by the appellant.

[16]For the appellant it is maintained that in using the words "no doubt advisedly" the trial judge had suggested to the jury that these criticisms were unusual or improper, and were advanced with reluctance. This undermined the appellant's defence. Mr. Findlay emphasised that there could have been no doubt about the defence position.

Transcript 19C-20D

[17]The trial judge then went on to give an account of police enquiries which he described as "exhaustive". He reminded the jury that they had heard evidence that "fresh minds were brought to bear, in particular those of senior and experienced detective officers. It would seem that no stone was being left unturned". In the course of that description he referred to the fact that police officers had a hair sample from the appellant which, on further forensic examination, appeared at that time to be a possible match for a hair found on the deceased's underpants.

[18]For the appellant it is maintained that in giving these directions the trial judge may have conveyed to the jury that he had formed a highly favourable view of the work done by the second police inquiry team, whereas the defence position was that police officers in that team had fabricated confessions and attributed them to the appellant. Mr. Findlay pointed out that the credibility of these police officers had been vigorously challenged at the trial. He also pointed out that it had been found, after the carrying out of forensic tests in the United States of America, that the pubic hair to which the trial judge had referred could not have come from the appellant.

Transcript 20D-23D

[19]The trial judge then said that the police, along with the procurator fiscal, had decided that the appellant should be re-interviewed. He informed the jury that the police had not only the right but also the duty to interview possible suspects. A person under suspicion had on the other hand certain rights. Statements made at such interviews would not be admissible in evidence against them unless they had been fairly obtained. Thereafter the trial judge said that normally a police interview would be tape recorded. He then said:

"On occasions, however, an accused will decline to talk on tape. That does not preclude the police from questioning him and in prudence a written record, a written record is therefore kept. That is basically what happened here. Although on occasions the police appear to have insisted that the tape be on apparently to record the allegations of improper conduct on their part being made by the accused".

[20]It is maintained that the passage which we have quoted did not accurately reflect the evidence. The trial judge had implied that the appellant had refused to be taped. While the evidence of the police witnesses was that he had declined to be taped, his position, on the other hand, was that the police had denied his request to be taped. Mr. Findlay added that the appellant also disputed the evidence of the police witnesses that he had refused to sign the police notebook in which his alleged statement had been recorded. His position was that he had never been asked to do so. The trial judge should have reminded the jury that the appellant had given evidence in regard to these matters.

Transcript 23D-23F

[21]The trial judge followed the passage which we have quoted by stating:

"Eventually, ladies and gentlemen we have heard from the officers involved, the accused did, did make incriminating statements, incriminating statements about his movements that night. The accused did admit that he gave a false alibi and did agree to show the police the route he took on the night of the murder and point out to them the house where it had taken place. Thereafter he made a full and detailed confession to the murder, recorded in the police notebook. That is the evidence upon which the Crown now relies".

Mr. Findlay submitted that the trial judge should have made it clear that he was referring to disputed evidence and hence achieved a proper balance in his directions. The position of the appellant, to which the trial judge had made no reference, was that he had not made any of the statements attributed to him by the police witnesses. The appellant did not dispute that he had been upset on a number of occasions: this was due, not to his having accepted his guilt, but on account of his being wrongly accused. He had not volunteered to take the police to the place, but he had been taken there by the police.

Transcript 24A-25C

[22]The trial judge then directed the jury that they should ask themselves a number of questions, namely, whether they were satisfied that the statements were actually made; whether they were true; and whether they had not been unfairly obtained. In regard to the first of these questions, he remarked that there was a clear question of credibility, adding:

"Either the police officers are lying, or the accused is not telling us the truth. If the police officers are lying then that you may think inevitably involves a conspiracy as it has been called, a conspiracy amongst a number of police officers, some of them of experience and senior rank, and that is a matter you are entitled to take into account, despite Mr. Prais's protestations to the contrary. A conspiracy amongst a number of senior police officers to commit serious crimes, to commit an attempt to defeat the ends of justice and to commit perjury by giving false evidence in this court".

[23]It is maintained that this passage suggested to the jury that the assertion that the police officers had been lying was preposterous. Mr. Findlay submitted that the words of the trial judge would have been understood by the jury as a hint that, since some of the police officers were of experience and senior rank, it was more likely that they would have told the truth.

Transcript 25E-27C

[24]Thereafter the trial judge gave the jury directions about the corroboration of a confession by reference to special knowledge displayed by the accused. In the course of these directions he stated:

"In this case the Advocate depute on behalf of the Crown points to a considerable number of details referred to in the accused's confession, such as the layout of the house, the position of the deceased, the fact that he suffered head injuries, the party going on across the road, the presence of a Stenhouse taxi, all of which he says have been proved by other witnesses actually to have been the case and which show that the only reasonable explanation for the accused's knowledge of these matters was that he was there and was the murderer.

Against that of course you will have to consider the alternatives put by Mr. Prais. He has suggested that all these circumstances were well-known to the police by August 1997 and that it would have been a simple matter he says for them to have made reference to them in a confession which they themselves composed. You have heard the various reasons that Mr. Prais gave for this direct allegation, namely that this was a complete fabrication by the police for quite improper and illegal purposes and no doubt you will give his submissions due consideration".

[25]On behalf of the appellant it is maintained that this passage gave the impression that the trial judge had formed a view that there was overwhelming evidence that the confession was one which displayed special knowledge. Mr. Findlay submitted that crucially the trial judge had failed to remind the jury that the confession omitted any reference to the murder weapon. Whereas the confession had given details about a number of matters, they represented peripheral information which was already known to the police at the time that the appellant was interviewed. The medical experts, however, had not been able to suggest the nature of the murder weapon, and there was no agreement between them as to which part of the head had been struck, and by how many blows. It was highly significant that the appellant's alleged confession did not state the nature of the murder weapon, which he said he could not remember, and gave no details as to where he had struck the deceased on the head.

[26]Mr. Findlay also pointed out that, while the trial judge had reminded the jury that the appellant had put forward the special defences of alibi and incrimination, he had said nothing to them about the evidence which was relied on by the defence in support of them. The appellant had spoken to the alibi which he had given to the police at the outset of their investigations. In the course of cross-examination of Crown witnesses various matters had been elicited in support of the suggestion that the crime may have been committed by Dennis Haggart. There was, for example, evidence of an argument between him and the deceased, and the fact that he would not go into the livingroom where the body was lying.

[27]On the whole matter Mr. Findlay submitted that the trial judge had fallen into the error of selecting parts of the evidence which had conveyed to the jury that he took a favourable view of the police evidence which was relied upon by the Crown, and had failed to observe a proper balance between the case for the Crown and the criticisms of it advanced on behalf of the appellant. It was insufficient for the trial judge merely to tell the jury that his references to the evidence were purely for their assistance. Furthermore, the judge had concentrated on the police inquiry and the evidence as to incriminating statements which the appellant had allegedly made in the course of being interviewed by the police. He had failed to achieve a proper balance by omitting to refer to the evidence relating to the defences of alibi and incrimination.

[28]As we have noted, in one respect it is maintained that the trial judge failed to point out to the jury that certain matters were in dispute. It is well recognised that there may be cases in which the failure of a trial judge to direct the jury as to the existence of an issue will give rise to a miscarriage of justice. Examples may be found in the cases of H.M. Advocate v. Mills 1935 J.C. 77 and H.M. Advocate v. McTavish 1975 S.L.T. (Notes) 27, to which we were referred by Mr. Findlay.

[29]In the present case there was a dispute as to the circumstances in which the tape recorder was not used during the interviewing of the appellant: the police stated that he refused to be taped, whereas he stated that they had declined his request. The passage in which the trial judge stated: "That is basically what happened here" could be read as referring back to the situation in which an accused declined to talk on tape or, as the Advocate depute suggested, to the keeping of a written record of what he said. It seems to us that it may not matter which is the correct interpretation. If the trial judge meant that what happened in the present case was that a written record was kept, this would indicate that the suspect had declined to talk on tape. It would have been better if the trial judge had pointed out that he was alluding to the explanation given by the police witnesses as to what had happened, whereas the appellant had given a different account. However, it should be borne in mind that this dispute was not the main issue, which was whether the recorded statement was a true account of what he said or was a complete fabrication. It is clear that this issue was put to the jury. At an earlier stage in his charge the judge reminded them that the appellant had given evidence and that his evidence clearly amounted to a denial of guilt. Towards the end of the charge he reminded them that they had heard various reasons given by counsel for the appellant for the defence allegation that the appellant's "confession" was a complete fabrication by the police.

[30]As we have already noted, it was also pointed out on behalf of the appellant that there was a dispute in regard to the fact that the notebook was not signed: the police witnesses stated that he had refused to sign, whereas he stated that he had not been requested to do so. Unlike the explanation for the fact that the tape recorder was not operated, this was not a matter which was mentioned by the trial judge. We do not regard this point as being of significant moment. The trial judge cannot be expected to rehearse before the jury every disputed matter of fact.

[31]We turn then to the trial judge's references to the police evidence. We do not accept that the passage at 18F-19C suggested what is claimed by the appellant. In our view the trial judge was doing no more than pointing out that the criticisms were of a serious nature, and, as such, would not have been lightly made. We doubt whether the passage at 19C-20D should be understood as more than a description of the second police inquiry, although we have difficulty in understanding why the trial judge considered it necessary to state that it involved senior and experienced detective officers. We do not consider that the reference to the hair sample would have been prejudicial to the appellant. If anything, it may have assisted him, since the jury would have known that this item did not incriminate him, and indeed that there was no forensic evidence which did so.

[32]The passage at 24A-25C raises other considerations. In this passage the trial judge pointed out that the defence case involved that there had been "a conspiracy amongst a number of police officers, some of them of experience and senior rank". We do not consider that these considerations were irrelevant in judging the probability of the claim that the statement had been fabricated. The words of the trial judge can be seen to have been a reflection of what the Advocate depute said in his speech to the jury. However, it has to be noted that in this passage the trial judge was not merely setting out the main issue which they would require to resolve, but was also indicating a possible reason why it might be resolved in favour of the Crown. It may be that little could have been said on the other side of the argument. The danger is that such a comment on the police evidence could create the risk of an apparent loss of neutrality on the part of the trial judge.

[33]It remains for us to consider two other areas where it was maintained that the trial judge had not observed a proper balance between the Crown and the defence. The first relates to the corroboration of the incriminating statements which allegedly had been made by the appellant. We are not satisfied that the trial judge failed to make adequate reference to the defence case. It is clear from the passage which we have already quoted that he invited the jury to consider the defence argument that all the matters which were founded on by the Crown were already within the knowledge of the police by August 1997. The trial judge also reminded the jury that counsel for the appellant had advanced a number of reasons for thinking that the confession was a complete fabrication. These no doubt included the absence of information which might have been expected to be known to the perpetrator, but which were unknown or uncertain as far as the police were concerned. These points, if accepted by the jury, could undermine both the credibility of the police evidence as to what the appellant had said and that use of the confession as one displaying special knowledge.

[34]Finally, as we have noted, it was maintained by Mr. Findlay that the trial judge had failed to rehearse the evidence which was founded on in support of the defences of alibi and incrimination. There is no doubt that the trial judge drew attention to the existence of each of the defences, which he defined in terms which were unexceptionable. He did not, however, expand on the evidence relating to them. Whether the failure of a trial judge to rehearse the evidence in support of such defences will form a ground on which it can be said that he misdirected a jury depends upon the facts and circumstances of the individual case. In the present case the jury were directed that the appellant did not have to prove these defences, that evidence to support or to counter such defences should be considered along with all the other evidence in the case, and that in the end of the day the question was whether the Crown had proved the guilt of the accused beyond reasonable doubt. The evidence given by the appellant by way of alibi was in comparatively short compass. As the Advocate depute pointed out, a narration of this defence would no doubt have been accompanied by a reference to the evidence of Mr. Hall which contradicted it. As regards the evidence of incrimination, this went no further than showing that Dennis Haggart had been a possible suspect.

[35]Having considered the various criticisms which have been made of the judge's charge, both individually and cumulatively, while we have reservations in regard to his treatment of the police evidence, and in particular to the way in which he referred to the experience and seniority of certain police officers, we are not persuaded that the terms in which the trial judge directed the jury were such as to give rise to a miscarriage of justice.