Appellant: Prais, Q.C.;

Respondent: Cherry, Q.C., A.D.;

20 January 2010

[1] On 13 March 2009, at the High Court in Glasgow, the appellant was found guilty by a majority verdict of the jury on the following charge:

"on 17 August 2008 at an area of waste ground at Tamshill Street near to Shuna Street, Glasgow you David Peter Gallagher and Francis Patrick Gallagher did, whilst acting together, assault Jason McMenamin, then c/o Strathclyde Police, Maryhill, Glasgow and did repeatedly strike him on the head and body with metal bars or similar instruments whereby he was so severely injured that he subsequently died on 18 August 2008 at Stobhill Hospital, Glasgow and you did murder him and you did previously evince malice and ill-will towards him."

The appellant's co-accused, Francis Gallagher, his brother, was acquitted by a majority not proven verdict.

[2] Of even date the trial judge sentenced the appellant to life imprisonment, ordering that a period of 18 years be served as the punishment part, said period to run from 22 August 2008.

The appellant has appealed against conviction.

[3] For present purposes the circumstances of the offence, as reported by the trial judge, can be shortly stated as follows. At or about 1.15pm on Sunday 17 August 2008 the deceased, Jason McMenamin, who was then 31 years of age, was returning on foot with his younger brother, Brian McMenamin, from a short visit to the deceased's former girlfriend's house in the Ruchill area of Glasgow. The two men had walked there shortly before 1pm that day. While walking to the house Brian McMenamin had noticed a white van. This vehicle was familiar to him as being one regularly driven by Francis Gallagher. It was not disputed at the trial that the white van was indeed being driven by Francis Gallagher at or around 1pm in the streets near to the scene of the murderous attack on the deceased. Evidence was led of a background of hostility and bad blood between Francis Gallagher and Brian McMenamin arising out of a seemingly trivial incident when a parcel intended for Brian McMenamin had been mistakenly delivered to Francis Gallagher. Evidence obtained from CCTV cameras showed a white van at around 1pm in the vicinity of the scene of the murder. At 1.01pm the appellant was captured on CCTV having just alighted from the passenger side of the white van on Maryhill Road near to its junction with Shakespeare Street, a short distance from the scene of the attack. The white van then drove off. The jury evidently accepted the Crown case that the appellant got back into the van a few moments later.

[4] After the deceased and his brother came to an area of waste ground at Tamshill Street near to Shuna Street on their return journey, the white van pulled to a halt near to them. The time would have been around 1.15pm. Two men alighted from the van. The driver was Francis Gallagher (he accepted this much in evidence) and the passenger was, according to the Crown, the appellant. The Crown case was that the two men then engaged in a concerted murderous attack on the deceased, but the case against Francis Gallagher was rejected by the jury. By their verdict the jury accepted that the appellant violently assaulted the deceased by repeatedly striking him on the head and body with metal bars or similar instruments. Brian McMenamin described seeing the deceased being repeatedly struck by the passenger, whom the jury must be taken to have accepted was the appellant, with a metal bar on the back of his head. The appellant was identified as the passenger by Crown witness Adadu Attah, who lived in a nearby flat and witnessed part of the attack and its aftermath. There was also evidence that the appellant was working as a plumber at Glasgow University around the time of the murder and had access there to heavy copper piping of a type which was identified by Brian McMenamin and Mr Attah as being similar to the weapons used in the attack on the deceased. After the assault the two men got back into the white van and drove off.

[5] Before the trial the appellant lodged a special defence of alibi, in which he claimed that at the time of the attack he had been at a bookmaker's shop, then at a public house and thereafter at his parents' houses. Francis Gallagher on the other hand gave notice prior to the trial of an intention to lead evidence calculated to exculpate himself by incriminating the appellant, under and in terms of section 78 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). His position, confirmed in the evidence which he gave at the trial, was that he had stood beside the van while the appellant alone attacked the deceased.

[6] In the course of the trial the appellant gave evidence on his own behalf. In his evidence in chief he gave evidence in accordance with his alibi. When senior counsel for Francis Gallagher came to cross-examine him he sought leave of the court to do so under reference to the appellant's previous convictions. The submission made, as recorded in the minutes and reported by the trial judge, was to the effect that the evidence given in support of the appellant's alibi clearly undermined the defence of Francis Gallagher. It was therefore "evidence against" Francis Gallagher within the meaning of section 266(4)(c) of the 1995 Act. He was therefore entitled to pursue the line which he proposed. Reference was made inter alia to McCourtney v HM Advocate 1977 JC 68. Senior counsel for the appellant, in resisting the motion, argued that nothing in the defence advanced on behalf of his client was necessarily inconsistent with the stance taken by Francis Gallagher. He drew attention to the fact that he had been careful in presenting the appellant's defence to avoid any suggestion that Francis Gallagher was implicated in the murder.

[7] The trial judge allowed the proposed line of cross-examination to proceed. In the event, so we were informed, the appellant's whole criminal record was revealed to the jury in the cross-examination which followed. The appellant had previously been convicted on fifteen separate occasions. The most serious conviction was one in Glasgow High Court on 12 October 1998 of assault to severe injury and permanent disfigurement, in respect of which the appellant was sentenced to 5 years imprisonment. He had also been convicted at Glasgow High Court on 9 August 1990 of inter alia assault and robbery, in respect of which he received a sentence of 2 years imprisonment. On separate occasions he had been convicted of a contravention of section 1(1) of the Prevention of Crime Act 1953, and of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, both at summary level. He had been convicted on three separate occasions of attempting to pervert the course of justice. Although these three convictions were at summary level, the last one attracted a sentence of 6 months imprisonment.

[8] In his report to the court the trial judge explains his decision to allow the cross-examination as follows:

"[32] In McCourtney the Court observed (at page 73) that it could never be conducive to a fair trial to deny to an accused against whom a co-accused has given evidence, the right to cross-examine him as to credit and character. The Court went on to say, under reference to the decision of the House of Lords in Murdoch v Taylor [1965] A.C. 574, that the statutory provision in issue implied no discretion and that once its conditions had been satisfied, the trial judge was bound to allow the cross-examination with which the provision was concerned.

[33] I took the view, applying what I understood to be the effect of authority binding upon me in McCourtney, that the evidence given by the Appellant in support of his Special Defence of alibi amounted to evidence 'against' Francis Gallagher since it undermined his defence which was, as would have been apparent to the Appellant, one of incrimination of the Appellant. Accordingly, I considered that the conditions of section 266(4)(c) of the 1995 Act were satisfied and I was bound to allow the Appellant to be cross-examined on his previous criminal record.

[34] I should perhaps add that, in my opinion, it could also be said that the evidence given by the Appellant supported in a material respect the Crown's case against Francis Gallagher. As your Lordships will recall, the Appellant gave evidence that he alighted from the white van a short time before the murder leaving his brother in the vehicle which then drove off. This evidence supported a material aspect of the Crown case against Francis Gallagher since it put him in the white van in the vicinity of the attack a short time before it occurred. The Crown case was that Francis Gallagher was driving the white van when it stopped at the waste ground just before the deceased was fatally assaulted by the two accused.

[35] For this reason also I considered that Francis Gallagher was entitled to cross-examine the Appellant as to his previous record."

[9] In the Note of Appeal lodged on behalf of the appellant two grounds of appeal are stated. Leave to appeal has been refused in respect of the first (which sought to question the sufficiency of evidence against the appellant). In ground 2 it is maintained, putting the matter broadly, that the trial judge erred in allowing counsel for the co-accused to cross-examine the appellant by reference to his previous convictions.

Submissions on behalf of the appellant
[10] Before us senior counsel accepted, with his customary disarming candour, that ground of appeal 2 is not happily drafted and did not properly focus the argument which he wished to present. This argument, in summary, was to the following effect. It was accepted that, according to the present understanding of the law in Scotland, the test to be applied in determining whether an accused's evidence was evidence against a co-accused within the meaning of section 266(4)(c), and its precursor, section 141(f)(iii) of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"), is whether the evidence supported the Crown case against the co-accused in a material respect or was evidence which undermined the defence of that co-accused. Reference was made to McCourtney v HM Advocate and Burton v HM Advocate 1979 SLT Notes 59. It was also accepted that, according to the present understanding of the law in Scotland, if an accused had given evidence against a co-accused within the meaning of the relevant section, the trial judge had no discretion to refuse cross-examination in relation to his previous record. In these circumstances it was accepted that the trial judge in the present case had applied the law as it was currently understood. Whilst it was not accepted that he was right to take the view that the appellant's evidence supported in a material respect the Crown case against Francis Gallagher (Francis Gallagher's driving of the vehicle at the relevant time not having been disputed in the trial, and senior counsel for Francis Gallagher having no basis upon which to seek to attack the credibility of the evidence of the appellant on that matter, whether by reference to previous convictions or otherwise), it was nevertheless difficult to argue that the trial judge had erred in so far as he found that the appellant's evidence undermined the defence of Francis Gallagher. It could not be said that the alibi evidence contradicted Francis Gallagher's position on a matter which was de minimis.

[11] Senior counsel's position, however, was that there were strong reasons to suppose that the question of the appropriate test should be revisited by a larger court. Without prejudice to that generality, the present case put into sharp focus the question of the appropriateness of the second limb of the current test. This, in particular, had been the subject of previous adverse judicial comment. In McCourtney v HM Advocate the court, without expressing a view on whether it was appropriate, had been prepared (as invited by the appellant in that case) to apply what is now the accepted test. Its origin was said to be the speech of Lord Donovan in Murdoch v Taylor 1965 AC 574. Nevertheless in that case Lord Morris had favoured a more restricted test. Lord Reid had concerns about the approach of all of his fellow judges. Although four members of the court supported the view that a trial judge had no discretion, Lord Pearce dissented on that matter. In Burton v HM Advocate the relevant test was adopted as being the appropriate test without apparent discussion. In Sandlan v HM Advocate 1983 JC 22 Lord Hunter and Lord Dunpark had expressed doubts as to whether the test (in particular the second limb of it) was right, and indicated that in an appropriate case the matter could require to be reviewed by a larger court. In Barnes v HM Advocate 2001 JC 61 the trial judge had expressed concerns about the test and about the absence of any discretion. The court found it unnecessary to refer the question of the test to a larger court but held that in the particular circumstances of the case a literal application of it could not be supported.

[12] The test which senior counsel proposed, consistent, it was said, with the observations of Lord Morris in Murdoch v Taylor, was that evidence against a co-accused within the meaning of the section was evidence which could be prayed in aid by the prosecution in advancing its case against that co-accused. Negatively, it would not encompass evidence which was integral to an appellant's defence, and which was not advanced with any incriminatory intent. In an appropriate case there should be an element of discretion; alternatively it should be accepted that in certain circumstances, wider than those discussed in Barnes v HM Advocate, a literal application of the test could not have been intended by Parliament. In the present case application of the current test had confronted the appellant with an unfair dilemma, which cannot have been intended by Parliament. Although senior counsel had strenuously avoided any suggestion of seeking to incriminate the co-accused, the position was that if the appellant gave evidence in support of his alibi (which was integral to his defence, but which did not itself infer guilt of the co-accused) he was exposed to having his considerable criminal record revealed to the jury simply because of the incriminatory position which the co-accused wished to adopt.

[13] The appropriate course was that the appeal should be continued to be heard by a larger bench.

Submissions on behalf of the Crown
[14] Having heard senior counsel for the appellant, the Advocate depute did not take issue with the proposed reformulation of the ground of appeal. Further, without conceding in any way that the current legal test was wrong, and leaving it entirely to the court, she did not, in light of the history of the development of the test in Scotland and the previous adverse judicial comments which had been made, oppose the matter being referred to a larger court.

Discussion
[15] In Murdoch v Taylor the House of Lords was concerned to construe the terms of section 1(f)(iii) of the Criminal Evidence Act 1898, which was in similar terms to section 141(f)(iii) of the 1975 Act. In his speech Lord Donovan, at page 592, expressed the view, following (although not in every particular) a decision of the Court of Criminal Appeal in Stannard 1964 2 WLR 461, that the relevant words meant "evidence which supports the prosecution's case in a material respect or which undermines the defence of the co-accused". Lords Evershed and Pearce agreed with him. Lord Morris of Borth-y-Gest, however, said (at page 584):

"The Act does not call for any investigation as to the motives or wishes which may have prompted the giving of evidence against another person charged with the same offence. It is the nature of the evidence that must be considered. Its character does not change according as to whether it is the product of pained reluctance or of malevolent eagerness. If, while ignoring anything trivial or casual, the positive evidence given by the witness would rationally have to be included in any survey or summary of the evidence in the case which, if accepted, would warrant the conviction of the "other person charged with the "same offence", then the witness would have given evidence against such other person. Such other person would then have that additional testimony against him. From his point of view that testimony would be just as damaging whether given with regret or whether given with relish. Such other person might then wish, in order to defend himself, to show that credence ought not to be attached to the evidence which had been given against him. In such circumstances the Act removes one barrier which would otherwise be in its way".

On this matter, however, Lord Reid found (at p.582):

"great difficulty in agreeing with what I understand to be the unanimous view of your Lordships ... I have difficulty in believing that the word 'against' ... could have been used if the intention had been that this proviso should apply to all evidence which would tend to incriminate the co-accused. If that had been the intention the obvious course would have been to say "tending to incriminate" instead of 'against'. And there are other reasons which tend to strengthen my doubts. If this provision has this wide meaning, an accused person with previous convictions, whose story contradicts in any material respect the story of a co-accused who has not yet been convicted, will find it almost impossible to defend himself, and if he elects not to give evidence his plight will be just as bad. But I have been unable to find any satisfactory solution for the problem set by this proviso and therefore I shall not dissent."

[16] In McCourtney v HM Advocate the Lord Justice General (Emslie), delivering the opinion of the court, said (at p.72):

"For the appellant the first submission was that before evidence given by one accused relating to another accused can be evidence against that other accused for the purposes of section 141(f)(iii) the evidence in question must support the Crown case against the co-accused in a material respect or undermine his defence. This was the test favoured by Lord Donovan in Murdoch v Taylor [1965] A.C. 574 at p. 592 and it is a stiff one. Applying that test in this case to the evidence given by the appellant in the passages which we have quoted the trial Judge was wrong in holding that his evidence fell to be regarded as evidence against Robertson. We have no hesitation in rejecting this submission. Taking as our yardstick the test which counsel for the appellant wished us to apply - and we express no opinion as to the correctness of its formulation - we have not the slightest doubt that the evidence given by the appellant was evidence against Robertson. In the context of the evidence as a whole and of Robertson's in particular, it was quite devastating since (a) it materially supported the Crown case that Robertson was one of the principal actors in the crime; and (b) it undermined the defence of Robertson that he acted only on the instructions of his employers."

[17] It is apparent that the court was content to apply the test suggested on behalf of the appellant without deciding whether it was necessarily the right test. Notwithstanding this, in Burton v HM Advocate it was said, in the opinion of the court at p.59:

"The issue of the competency of that cross-examination turns on the application of s. 141(f)(iii) of the Criminal Procedure (Scotland) Act 1975 and it is with reference to that section and that section alone, as it may or may not apply to the circumstances of this case, that the appeal is taken. It should be explained that that sub-section was considered recently by this court in the case of McCourtney v H.M. Advocate, 1978 S.L.T. 10, and the test which this court applied under reference to s. 141(f)(iii), was this: evidence is given by one accused against a co-accused if the evidence of that accused, namely the accused first-mentioned, was evidence which supports the Crown case against the co-accused in a material respect, or evidence which undermines the defence of the co-accused. Accordingly, as a matter of law, evidence against a co-accused within the meaning of the sub-section is evidence which supports the Crown case in a material respect or evidence which undermines that of the co-accused."

[18] In Sandlan v HM Advocate the appeal was allowed on the basis of a ground of appeal which did not raise this question. In the course of his opinion, however, Lord Hunter (at pages 31 and 32) said:

"In view of the conclusions which I have reached on the question of absence of opportunity for further cross-examination, I do not find it necessary to decide any of the other numerous grounds of appeal on which we heard argument. However, in deference to the very full and interesting submissions with which we were afforded, I think it proper to make brief observations on two matters of statutory interpretation which may be of some general importance. The first of these two matters relates to the proper construction and effect to be given to the words 'has given evidence against' in subsection (f)(iii) to Section 141(1) of the Criminal Procedure (Scotland) Act 1975. In English decisions a formula or test has been developed by certain judges, notably by Lord Donovan in Murdoch v Taylor [1965] A.C. 574, at p. 592, under which it has been suggested that the words quoted from the proviso should be taken as meaning that the evidence in question must support the Crown case against the co-accused in a material respect or undermine the defence of the co-accused. See also Reg. v Stannard [1965] 2 Q.B. 1; Reg. v Davis [1975] 1 W.L.R. 345. The test adopted by Lord Donovan was applied in McCourtney v H.M. Advocate 1977 J.C. 68, although it is clear that this was done on the basis of a concession. I would myself have thought that the evidence given by the appellant in that case was most plainly 'evidence against' his co-accused Robertson without the aid of any test, formula or gloss, and this appears to be the effect of the Opinion of the Court. Moreover, the application of the words of the proviso in plain English may in many cases be a safer course than the application of a formula which certainly in its second limb is a somewhat refined concept. A trial judge will usually have to reach a decision on this matter under pressure in the course of a trial, and may have to do so at a stage when it is by no means clear what 'the defence' of the co-accused is to be. In such circumstances the second branch of Lord Donovan's formula may not even be available. This may well have been the position in the present case at the stage when the presiding judge dealt with the application by counsel for the co-accused to ask questions in cross-examination of the appellant which could in the circumstances only be asked if subsection (f)(iii) to section 141(1) of the Act of 1975 was satisfied. I must confess that, but for the decision of this Court in Burton v H.M. Advocate 1979 S.L.T. (Notes) 59, I would for myself prefer to apply the words of the proviso according to their plain terms, without the gloss put on them by Lord Donovan and other English judges in the decisions to which reference has been made. It is to be noted that Lord Morris in Murdoch v Taylor cit supra, at pp. 583-584, adopted a somewhat different test from that which commended itself to Lord Donovan, with whom Lord Evershed concurred. See also Hackston v Millar (1906) 8 F. (J.) 52, per L.J.-C. Macdonald at p. 54: cf. Young v H.M. Advocate 1932 J.C. 63, per L.J.-G. Clyde at p. 73. The speech of Lord Morris gives some support to the submission of counsel for the appellant that an accused has not given evidence against a co-accused unless he had given evidence which is material to infer the guilt of the co-accused of the charge which he faces. In other words, according to the submission, the test is whether the Crown could found on the evidence as an adminicle of evidence of the guilt of the co-accused. However, it may be that such an interpretation of the proviso could not be sustained without the decision in Burton v H.M. Advocate cit supra being reconsidered by a larger Court, and I therefore express no concluded opinion on the question."

Lord Dunpark expressed his agreement with these observations. Lord Ross, however, said

"With reference to what your Lordship has said with regard to proviso (f)(iii) of section 141(1) of the Act of 1975, I regret that I cannot agree entirely with your Lordship's observations. In particular I do not share your Lordship's view that the second limb of the test adopted by Lord Donovan (undermining the defence of the co-accused) is a somewhat refined concept. There should be no problem where the co-accused has given evidence before the accused as in McCourtney v H.M. Advocate, 1977 J.C. 68. Where the co-accused has not yet given evidence, however, I recognise that in some cases it may not be clear what the defence of the co-accused is to be, but in many cases I would expect it to be quite obvious what the co-accused's defence is. The nature of the co-accused's defence should be apparent when the co-accused has lodged a special defence, or where evidence has been led by the Crown of an extra-judicial statement of the co-accused which he has not challenged, or where there has been full and adequate cross-examination of the Crown witnesses by the co-accused's counsel, and in such instances I am of the opinion that there should be no great problem in determining whether the accused has given evidence undermining his co-accused's defence.

Unless and until the decision in Burton v H.M. Advocate, 1979 S.L.T. (Notes) 59 has been reconsidered by a larger court, trial judges will require to apply the test approved of in that case, and, with all respect, I would not anticipate any undue difficulty in applying the test in both its branches."

[19] In Barnes v HM Advocate (where the trial judge refused to allow cross-examination by the appellant of a co-accused in relation to his record) it is recorded in paragraph [8] of the opinion of the court given by the Lord Justice General (Rodger):

"At the end of the argument the trial judge sustained the objection on the ground that, in his opinion, McGinley had not given evidence against the appellant in the sense meant by sec 266(4)(c). In his report to this court the trial judge indicated that, since the trial, the more he had reflected on the point, the more he had come to think that the distinction which he had made was mere semantics. Nevertheless he continued to feel unease at applying the approach in McCourtney in the circumstances of this case. Since he considered that it would have been unjust to permit the cross-examination of McGinley on his previous convictions, he had grave doubts whether the opinion expressed in McCourtney, that the trial judge has no discretion to refuse to allow the co-accused to cross-examine as to criminal record when sec 266(4)(c) applies, was correct. Having analysed the authorities referred to in McCourtney, the trial judge expressed the view that the decision in McCourtney should be reconsidered and that the court should hold that a trial judge had a discretion which he or she could exercise in deciding whether to permit this type of cross-examination"

It is also recorded at paragraph [9] that the Crown had given an indication in writing, when the appeal first called before the court, that they favoured asking for a larger court to be convened to reconsider McCourtney, and that senior counsel for the appellant at the appeal would have consented to that, but by the time of the hearing, the Crown had modified their view and no longer wished that to be the first step. In the event the court had little difficulty, in circumstances where the relevant evidence of the co-accused was that the appellant had kicked the deceased, in deciding that this was evidence which supported the Crown case in a material respect and tended to undermine the appellant's defence that he was not the person who had kicked the deceased at the end of the incident, and thus that on a literal application of the relevant test it was plain that this was evidence against the appellant. Nevertheless the court decided, in accordance with the Crown argument, that although on a literal interpretation of sub-section (4)(c) the appellant would have succeeded, regard had to be had to the overall legislative intention and that

"it was not intended that the section should confer a right to cross-examine on a co-accused whose counsel deliberately forced the accused to give evidence against the co-accused with the avowed purpose of putting himself in a position to exercise that right and thereby damage the credibility and reliability of the accused" (para. [23]).

[20] Having considered these authorities, and the argument of senior counsel for the appellant (and the Crown's response), we have come to the view that it would indeed be appropriate to refer this appeal to a larger bench. In particular we consider that the circumstances of the present appeal are likely to put into sharp focus the question of the appropriateness of the current test, and in particular perhaps the second limb of it; a test which a number of judges have suggested could benefit from reconsideration. In these circumstances we think it inappropriate to offer any views of our own. However, in further explanation of our decision to remit to a larger bench, we think it right to say that we do consider that there is force in senior counsel's submission that this is not a case in which it could properly be said that the first limb of the current test had been met. As to that we did not understand the Advocate depute, in her short address, seriously to disagree (albeit no concession was made). Further we have reason to believe that the test referred to by Lord Donovan in Murdoch v Taylor has, in a number of subsequent English decisions, been, if not changed, at least developed, and we have suggested to the parties that the court would be likely to be assisted by reference to these cases.

[21] For these reasons the appeal will be continued to be considered by a larger bench.