Scottish High Court of Justiciary Decisons

ALEXANDER GRANT HALL v. HER MAJESTY'S ADVOCATE [1998] ScotHC 25 (18th December, 1998)

On 7 July 1998 this court directed, under reference to its opinion of that date, which is reported in 1998 S.C.C.R. 525, that the evidence of James McAvoy and Mrs. Jean Carroll should be heard in the appellant's appeal against his conviction of the murder of Lorna Ann Porter. In connection with the assessment of the evidence of those witnesses the court also gave authority for leading of additional witnesses.

On 16 November the evidence of James McAvoy and Mrs. Carroll was led on behalf of the appellant. The Crown led the evidence of Thomas Gerald Bradshaw, solicitor, Bellshill and Stephen Gerard Fagan, solicitor, Airdrie. In addition parties presented a minute of agreement relating to a map, a plan and photographs of the area to which the case related; the reporting to the police of an incident at Holm Gardens, Bellshill in the early hours of 10 September 1984; the appointments diaries of Mr. Fagan while a trainee solicitor in the firm of T.G. Bradshaw & Co. in early 1988; certain documents from the files of T.G. Bradshaw for early 1968; and the recording by the police of certain statements by James McAvoy and Mrs. Carroll.

It is convenient at this point to set out a summary of the evidence which was given by the witnesses to whom we have referred.

James McAvoy gave evidence that Mrs. Carroll contacted him at his home by phone about 3 or 4 p.m. on Sunday 9 September 1984. His wife had answered the call and told him that a woman was on the phone for him. When he went to the phone Mrs. Carroll told him that she wanted to see him about his brother George. She wanted to know how she could get rid of him out of her life. He said to her that it was her problem. He knew that they had separated, but did not know when. Mrs. Carroll wanted to see him in the evening. He arranged to meet her at the Miners' Welfare Club in Thorn Road, Bellshill between 8.30 and 9.30 p.m. She said that she would probably play bingo there. She said that if she was not at the club, he could get her at Holm Gardens where her daughter Diane lived. He knew that she lived in the large building in that street. He did not know which was Diane's house. He was to draw up nearby and Mrs. Carroll would come out to talk to him. The witness accepted that Mrs. Carroll might have wanted to see him to have sex. He was the father of her daughter Phylis who is now 34 or 35 years of age. He went to the club quite often and saw her there. On occasions they had sexual intercourse, but it was not an ongoing sexual relationship. He did not tell his wife that he was intending to see Mrs. Carroll that evening. As far as she was concerned he was going out to see about a job which he had got. She knew that he had had a previous relationship with her, but did not know that he was going to see her. She would not have been pleased if she had known that he was having sex with her. He had given up full time work as a kerb layer, but still did odd jobs. He did not usually go out on a Sunday evening. This was so that he could recover from his drinking on the Friday and Saturday. If he went out his wife would go up to watch television and then go to bed.

The witness said that he drove to the Miners' Club, reaching there before about 9 p.m. Bingo started at 9.30 p.m. Mrs. Carroll did not appear there. He left the club after the second game had started about 9.40 p.m. Bingo normally ended at about 10-10.10 p.m. He then drove to Holm Gardens, reaching there at 9.50-9.55 p.m. He parked his car on the other side of the road from the block in which Diane's house was situated, and, almost at right angles to the end of it. There was only one space in which he could park his car. Mrs. Carroll's car was further ahead opposite the block. When he was reversing his car into the space he was passed by a man wearing a hood up over his head. He had come from the back of the block. He went into the space between two blocks on the same side of the road as the witness, beyond which were some lockups. When he reached a fence he took off his hood which he was wearing under his jacket and began looking through the spars in the fence and up at the block which contained Diane's house. It was his brother George. The witness waited to see what was his next move. He wanted to keep a low profile, and did not move in case his brother saw him. He was concerned that he would be blamed for the fact that his brother and Mrs. Carroll had fallen out. His brother stayed behind the fence for about perhaps five minutes. Then he walked up towards the block and round behind it. After about five minutes he came back up Holm Gardens in front of the block. He repeated his circuit of the block a number of times, sometimes going in one direction and sometimes in the other. About three or four times the witness tried to depart in his car. To do that he had to reverse the car out the way he had come because the road was a cul-de-sac. But a taxi would come when he tried to do so. Also he did not want to be seen. He remained parked in the same place until about 12.05 a.m. During the intervening time his brother had been walking round the block in a perfectly normal way. It was as if he was guarding the block like a soldier. He would stare up at the block, watching the stairway at each end. The witness had been planning to go home an hour earlier. He did not think that his wife would be worried. When he eventually left the scene he was aware that his brother was taking longer to return to his position at the fence. As he drove away he saw him standing at the back of the block looking up at it. At no point did the witness see Mrs. Carroll that evening. There was no possibility that his brother could have reached the Miners' Club and returned in time to reappear as he did. It would take a fit man about seven minutes to run to the club from Holm Gardens. At walking pace it would take at least 15 minutes. At another part of his evidence he said that he would take a total of about four to six minutes to reach the Miners' Club. At no point did his brother walk further in the direction of the lockups.

As regards what happened after that night, the witness said that later on the Monday when he was speaking to Mrs. Carroll she said to him that it was a good job that he had not come down to Diane's house. He told her that he had been there and had seen his brother George. He accepted that on 24 August 1984 he was interviewed by the police at his home. His wife was with him at the time. He was asked about his whereabouts on the Sunday night. He agreed that he had said to them, as was recorded, that he had not seen his brother since the previous July. When he was asked why he had not mentioned to them that he had seen him on the Sunday evening, he said that the police merely asked him about his own whereabouts. His wife told them that he did not go out on a Sunday night. He did not recall saying anything about his brother George. He could not see what the two things had in common. He had no recollection of the police coming back to interview him on 28 September. He had no recollection of being asked if he had ever seen his brother with a knife. If he had said to the police that he had been down at Holm Gardens it would be "a different ball game". No one knew that he had been there. He had been prepared to lie to the police "as it did not bring anyone else in". The witness said that he had no recollection of who had been charged with the murder of Lorna Ann Porter. He did not know that his brother George was involved at all until he discovered to his surprise that his brother was the main witness in the appellant's trial. His wife got a copy of the Bellshill Speaker shortly after the end of the trial and told him that his brother had been the main witness. He went straight up to the office in Bellshill of T.G. Bradshaw & Co., Solicitors, arriving there some time after 3 p.m. He had no appointment. He saw Mr. Fagan and angrily threw down a copy of the newspaper, saying that his brother George could never have seen what he had described in evidence about seeing the appellant in the garden opposite the club at about 10.45-10.50 p.m. It was "a lot of lies". This was the sole reason why he went to the solicitor's office. Mr. Fagan pointed out that the police had got someone; and that he (the witness) was a married man and risked ending up with a divorce. Mr. Fagan advised him to "forget it". He thought that he said to Mr. Fagan that he had been down to Holm Gardens that night. In any event he might have "put two and two together". His wife would not have been pleased to know that he had been having sex with Mrs. Carroll in 1984. The witness was asked why he had not gone to the police. He replied that they would have been the last people to want this information, as it had taken them three and a half years to get where they were. It would not have suited them. He had not had much to do with the police before. The witness also said that in 1994 his daughter had told him about another article in the Bellshill Speaker which questioned the appellant's conviction, stating that someone was hiding something. He got in touch with the newspaper. He added that he had forgotten that he had also contacted Mr. McSherry, the appellant's solicitor advocate, in November 1993. Thereafter he met the appellant's brother Donald in the company of a reporter from the Bellshill Speaker. He travelled in the reporter's car as it was driven from Holm Gardens to the Miners' Club, while Donald ran across the park in that direction. They arrived at the club first, taking ten to 12 minutes, but Donald arrived "just at our backs".

Mrs. Carroll gave evidence that in September 1984 she had been living with George McAvoy at an address in Motherwell, but they had separated. She then stayed at first with friends for a couple of nights, after which she stayed with one or other of her two daughters Phylis and Diane. She contacted James McAvoy on Sunday 9 September 1984 as she wanted to meet him. She thought he could do something about his brother George. She said at first that she was not wanting to see him for sex, and did not agree that she had said this to the police, despite the terms of the police statement dated 26 January 1995. Then she said that she did not think that she would have said that. The subject was embarrassing. She agreed that, as was recorded by the police, she had told James McAvoy's wife about their relationship before September 1984. She said that if his wife had answered the phone she would have broken off the call, but she accepted that it could be that she went ahead with it. She spoke to him and asked him to meet her at the Miners' Club before 10 p.m. However while she was at the house of her daughter Phylis at Baird Place she caught sight of George McAvoy watching the house. She said that he had always watched her movements, even though they were not living together. If he did not see her at one place, he would go on to another in order to see if her car was there. "He did daft things". She left her daughter's house just before 10 p.m., following the ending of a particular television programme, which, it was agreed, was at 9.40 p.m. She decided to mislead George McAvoy by indicating that she was turning left in her car, but instead driving to the right in the direction of Bellshill Cross. She did not think that he was wearing a jacket with a hood although he had such a thing. It took her about 10 minutes to arrive at Diane's flat. When she had been there for about 5-10 minutes she saw George when she looked out of the window. He was standing in the lane across the road. She looked out only once. No lights were put on in the flat so as not to let him know that she was there. She had been expecting James McAvoy to come up to the flat. She thought that he had been there before, but he did not usually call as her daughter Diane did not like him. She fell asleep for a time. Then she heard a sound as if someone was trying to get into the bathroom from a concrete structure outside. She crawled through the flat and crept downstairs where she phoned for the police. As she was doing so, about 12.30 a.m., she heard the sound of her car being smashed. When she was reminded by Mr. McSherry, she recalled that three notes had been put in through the letterbox. These were probably from George, saying that he was going to commit suicide. Mrs. Carroll also said that she had made a second phone call to James McAvoy on the Sunday. This was from a call box near Diane's house, and was after she saw George McAvoy in the street looking as if he had drink in him. In this second phone call she said to James McAvoy not to come to the Miners' Club to meet her but to come to Diane's house.

Mr. Fagan said in evidence that he had become a trainee in the firm of T.G. Bradshaw & Co., Solicitors, in September 1987. He accepted, in view of documents shown to him, that in January 1988 James McAvoy had seen him in regard to his motor insurance, after which there had been some correspondence. However, he had no recollection of Mr. McAvoy and could throw no light on an entry in his appointments diary which appeared to show that he had had a meeting with him on Friday 5 February 1988 at 4 p.m., lasting for 40 minutes. He was aware of the appellant's trial which had concluded with his conviction on 2 February 1988. He had no recollection of any client coming into the office to consult him in regard to evidence which had been given at the trial by George McAvoy. He had no recollection of James McAvoy coming into the office and throwing down a copy of the Bellshill Speaker. If he had merely come in unexpectedly he would have been seen by Mr. Bradshaw. He could not think of any circumstances in which he would have advised James McAvoy that to challenge his brother's evidence might affect his marriage. He baulked at any suggestion that he told him to "forget it". He surely would have remembered that. He had never been involved in giving advice in regard to a murder case. It was not his field, and he would have referred this to Mr. Bradshaw. The first that he knew of the suggestion that James McAvoy had consulted him in 1994 was when police officers were making enquiries.

Mr. Bradshaw explained in evidence that Mr. Fagan had trained with him and in due course became his assistant. James McAvoy had not consulted him in 1984 in regard to a murder case or drawn his attention to a report in the newspaper about his brother having given evidence at the trial. If he had been asked by James McAvoy for advice on that subject he would have remembered that. He was unable to comment on the entries in Mr. Fagan's appointments diary. He doubted whether the entry on 5 February 1988 related to an occasion when James McAvoy merely "dropped in".

We turn now to the submissions made on behalf of the appellant and by the Crown in the light of this evidence. In its Opinion dated 7 July 1998 the court held that the material before it was such as to show that a reasonable explanation could be provided of why the evidence of James McAvoy and Mrs. Carroll was not heard at the appellant's trial. We now require to consider whether the evidence we have heard does provide a reasonable explanation and, accordingly, meets the requirement of (3A) of section 106 of the Criminal Procedure (Scotland) Act 1995, as amended.

Mr. McSherry for the appellant submitted that the evidence showed the reason why James McAvoy withheld information from the police about the whereabouts of his brother George on the night of Sunday 9 September 1984 and told them that he had not seen him since the previous July. He wanted to conceal the fact that he was still seeing Mrs. Carroll. It was understandable that he had deceived his wife. He did not necessarily know that she had already been told by Mrs. Carroll about their relationship. As regards his evidence about consulting Mr. Fagan in February 1988, following the appellant's conviction of the murder, Mr. McSherry submitted that in the circumstances it was possible that James McAvoy had merely "dropped in" to the solicitor's office. Mr. Fagan's diary gave a time for the length of his meeting with him, and there was no minute or other entry in the solicitor's file for that date. While Mr. Fagan could not even remember James McAvoy, it was plain that he must have been involved in dealing with his insurance problem. Mr. Fagan could not exclude the possibility that he had had a conversation with Mr. McAvoy about the evidence which had been given at the trial. It was plain that James McAvoy should have gone to the police. His evidence about his attitude to doing so was strange. However, it had to be borne in mind that at that time there was still the "eternal triangle" formed by himself, Mrs. Carroll and George McAvoy. His wife was still alive, and for him to speak to the police about the events of the night of 9 September 1984 would have brought out his continued interest in seeing Mrs. Carroll. It was significant that his wife had died by the time that he swore the affidavit dated 1 August 1994, to which the court referred in its earlier opinion. The information which James McAvoy could provide was of critical importance. Without it the evidence of Mrs. Carroll could not be understood. Although she was on the Crown list of witnesses due diligence would not have led to the revelation of George McAvoy's actions over a two hour period in the course of which he had claimed to have witnessed the incident in the garden of the appellant's house. Mrs. Carroll had been able merely to give evidence that George McAvoy had been in Holm Gardens around 10 a.m. and at 12.30 a.m. This would not have shown that he could not have been at the Miners' Club at 10.45-10.50 p.m.

The Advocate depute emphasised that the onus was on the appellant to show that there was a reasonable explanation of why the evidence of the two witnesses was not heard at the trial. This involved the application of an objective test. As regards James McAvoy, it was not difficult to see why neither side thought that his evidence was of interest at the time of the trial. This was due on any view to his lying to the police on two occasions as to his knowledge of the activities of George McAvoy on the evening of 9 September 1988. There was no doubt that at the time George McAvoy was himself a suspect. Hence the police were wanting to find out what he had been doing by questioning persons such as James McAvoy and Mrs. Carroll. She had been included in the Crown list of witnesses as she said that George McAvoy was in the habit of going to the Miners' Club. This therefore could be used to give credibility to his account that he had been there on the evening in question. However, the appellant had not provided any information to the court as to the steps which were taken to find out what Mrs. Carroll would have said if she had been further questioned about the evening. She had told the police nothing about seeing George McAvoy at Holm Gardens. This had not emerged until her police statement dated 26 January 1995. If she had been further questioned she might have stated that she saw George McAvoy there and, furthermore, that she had arranged to see James McAvoy. This might have led to the revelation of what James McAvoy knew.

In Campbell (T) v. H.M. Advocate 1998 S.C.C.R. 214 at page 242 it was observed by the Lord Justice Clerk, in connection with the requirement of subsection (3A) that there is a reasonable explanation of why the evidence on which an appeal is to be based was not heard at the trial, that much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time. There may have been no good reason for thinking that the witness existed. Even if he was known to exist, there may have been no good reason for thinking that he would give the evidence in question. No doubt this does not exhaust the possible examples. The terms of subsection (3A) suggests that the matter should be looked at from the point of those who represented the appellant at the time of the trial, which includes, of course, the period in which the defence was being prepared. Thus, if it is shown that despite reasonable steps having been taken to investigate the case, it did not appear that a person would provide information which would be of assistance, whether by way of challenging the Crown case or advancing the case for the defence, there could be a reasonable explanation of why he was not adduced at the trial to give the evidence which he is now asked to give. It follows that, in a case where the requirements of subsection (3A) have to be satisfied, it is important that the appellant should be able to point to information as to what was known to those who represented the appellant at that time and what steps they took to investigate the defence.

In the present case, as was pointed out by the Advocate depute, no evidence was led from those who were responsible for the defence of the appellant at the trial. While it would have been better if such evidence had been presented, we do not consider that its absence is fatal in the circumstances of the present case. So far as James McAvoy is concerned, it is plain that he did not appear to the Crown to be able to give any useful evidence. He did not appear on the Crown list of witnesses. There is nothing in his police statements to indicate that he was able to give any evidence as to the whereabouts of George McAvoy who was a critical witness for the Crown. Instead he said that he had not seen his brother since the previous July. There is nothing to suggest that if he had been precognosced by the defence he would have made any different statement, since it is plain that he was prepared to conceal his own whereabouts on the night of Sunday 9 September 1984. The reasons why he did so do not require to be examined for the moment. As regards Mrs. Carroll, her position, according to a statement made by her to the police dated 18 September 1984, was that about 9.15 p.m. George McAvoy telephoned her. She went to the house of her daughter Diane in Holm Gardens, but did not say to the police that she saw George McAvoy there after she arrived there. She merely said that later that evening he had put three notes through her letterbox; and that she heard the sound of breaking glass, which would have been no earlier than about 12.30 a.m. Even if she had said then, as she said later in her police statement dated 26 January 1995, that she saw George McAvoy at Holm Gardens about 10 p.m., it is not obvious that this would have led on to the discovery that James McAvoy was at Holm Gardens, and in particular about the time when George McAvoy said that he witnessed the incident in the garden of the appellant's house in Thorn Road. We do not overlook the fact that in his evidence to this court James McAvoy said that he had a conversation with her later on the Monday in which he told her that he had been at Holm Gardens. Neither Mr. McSherry nor the Advocate depute questioned her on this point. In the circumstance it is wholly speculative whether questioning of Mrs. Carroll in September 1984 would have led the defence to discover that James McAvoy was at Holm Gardens, let alone about the time when George McAvoy claimed to have witnessed the incident.

Accordingly we are satisfied that the appellant has shown that there is a reasonable explanation of why the evidence of James McAvoy and, considered in conjunction with his evidence, that of Mrs. Carroll was not heard at the trial.

We turn then to consider the significance of the evidence which has been heard. For this purpose parties were agreed in making their submissions by reference to the well-known exposition by the Lord Justice General (Emslie) in Cameron v. H.M. Advocate 1987 S.C.C.R. 608 at page 619.

Mr. McSherry submitted that the evidence of James McAvoy, supported by that of Mrs. Carroll, was credible and capable of being regarded as reliable by the jury. The fact that he had let his wife believe that he had gone out to see about a job - on a night which had no particular significance for her - should not affect the credibility and reliability of his account as to what he saw at Holm Gardens. Mrs. Carroll had all along said that she had been at that address from about 10 p.m. Her description of where she saw George McAvoy supported what James McAvoy described. It was true that she said that she had made a second telephone call to James McAvoy, whereas he described only one call. This was not fatal to his credibility or reliability, having regard to the lapse of time since events to which neither attached any particular significance at the time. He had given an adequate explanation of why he had not left his position during the period when he was sitting in his car at Holm Gardens. As regards the materiality of their evidence it was important to bear in mind that at the trial the evidence of George McAvoy was of critical importance to the Crown case. Had their evidence been given at the trial the jury would have been directed that, if their evidence was accepted, it raised at least a reasonable doubt as to the Crown case. In the event the defence not only suffered through the absence of their evidence, but also lacked a proper basis on which to cross-examine the evidence of George McAvoy. If the evidence of James McAvoy was substantially correct there was, in his submission, no room for George McAvoy being at the club at 10.45-10.50 p.m. James McAvoy had described the way in which George had guarded the block in which Diane's house was situated as if he was a on sentry duty. In these circumstances the evidence of James McAvoy and Mrs. Carroll would have been likely to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue, namely the credibility and reliability of the evidence of George McAvoy, even if it could not be said that the jury would have been bound to acquit.

The Advocate depute submitted that the evidence of James McAvoy did not measure up to being credible and capable of being regarded by a jury as reliable. On any view he had lied to the police on two occasions, his wife being present on only one of them. In any event he must have been aware that the police were investigating the possibility that his brother George was responsible for the murder. Even if he had been reluctant to speak out in his wife's presence, he surely would have been expected to contact the police if it was true that he had watched George for a considerable period at Holm Gardens. His attitude to informing the police at any stage was not consistent with that of a credible and reliable witness. His evidence was also clearly in conflict with that of Mr. Fagan and Mr. Bradshaw. If their evidence was accepted he was also lying about a meeting in February 1988 in which he sought advice about George McAvoy's evidence at the appellant's trial. No explanation had been given about James McAvoy's reference to contacting Mr. McSherry in November 1993. Further there were a number of points on which his evidence conflicted with that of Mrs. Carroll, namely whether George McAvoy was wearing a hood; the purpose of their meeting; and whether he was expected to sit in his car in Holm Gardens or come up to Diane's house. Apart from Mrs. Carroll there was no other evidence to confirm James McAvoy's story that his brother had been at Holm Gardens that night. It was entirely in the realm of speculation as to why after many years James McAvoy had come forward with this account. In any event the materiality of James McAvoy's evidence was challenged. All that he could say was that he saw his brother George in Holm Gardens from time to time. This did not exclude the possibility that George had gone to the Miners' Club and while he was in the vicinity of the club witnessed the incident in the appellant's garden. The Advocate depute pointed out that George McAvoy was never asked at the trial about his movements during the entire period between 10 p.m. and 12.30 a.m. He might well have said that he went to Holm Gardens and back again. The Advocate depute submitted that there were a number of routes by which one could proceed on foot from Holm Gardens to the Miners' Club. It would have been different if James McAvoy had said that his brother was in his sight all the time. According to his evidence it would take a total of about four to six minutes to travel to the Miners' Club. Allowing for the double journey there would still have been time for George to return to the scene in Holm Gardens without greatly extending his timing. It was also important to bear in mind that at the trial George McAvoy had given a careful description of the clothing worn by the girl or young woman. This matched that of the deceased. There was a logical reason for him going to the Miners' Club. It was important that he had described the incident taking place in the appellant's garden. When the body of the deceased was found on 10 September 1984 it was a significant distance away from the appellant's house. Prior to the time that George McAvoy came forward in 1987 with information as to what he had seen in Thorn Road, it had not been public knowledge that the appellant had made an admission to the police, which he was said to have done on 10 July 1985.

There is no doubt that on any view James McAvoy lied to the police and deceived his wife. On the other hand there was an explanation that this was due to a misguided attempt to conceal the fact that he had gone to see Mrs. Carroll. This went so far as to show that he had a regrettable attitude towards providing information to the police, even when, on his own evidence, he thought that his brother had lied at the appellant's trial. His evidence as to his conversation with Mr. Fagan in February 1988 when he was allegedly advised to drop the matter lest he imperil his marriage is far from satisfactory. And yet the question is whether his evidence as to George McAvoy's presence in Holm Gardens, which is supported by Mrs. Carroll to some extent, can be dismissed as neither credible nor capable of being regarded by a jury as reliable. It is understandable that he should change his attitude after his wife's death and when the question of the appellant's guilt was once more being discussed in the local newspaper.

We have had the opportunity for ourselves of watching and hearing James McAvoy give evidence, and formed a reasonably favourable impression of the quality of his evidence. In these circumstances we have come to the conclusion that in regard to the substance of his evidence as to what he witnessed at Holm Gardens, his evidence is credible and capable of being regarded as reliable by a jury. As regards the materiality of his evidence, it is important for us to bear in mind not only the features of the evidence of George McAvoy of which the Advocate depute reminded us, but also the fact that his evidence was critical to the Crown case. That had the consequence that any other evidence which was accepted by the jury and which cast doubt on his evidence would undermine the case for the appellant's conviction. We have considered all that has been said as to whether George McAvoy could have been not only carrying out what James McAvoy described as sentry duty at Holm Gardens but also could have been for a time in Thorn Road where he witnessed the altercation between two persons who the Crown maintained were the appellant and the deceased. This is a matter which would have been very much for the jury to assess. We are satisfied that if the evidence of James McAvoy had been accepted by the jury or at any rate if it had been given some weight by them, it would have had a material bearing on whether they accepted the crucial evidence given by George McAvoy.

In these circumstances we are satisfied that the evidence of James McAvoy and Mrs. Carroll, which we have heard, is significant evidence, and that the fact that the appellant's trial did not include that evidence constitutes a miscarriage of justice. Accordingly his conviction falls to be quashed.

The Advocate depute invited us, in the event that we were to quash the conviction, to authorise the bringing of a new prosecution in accordance with section 119 of the Criminal Procedure (Scotland) Act 1995. He recognised that a considerable period of time had elapsed since the appellant's conviction. However, the quashing of that conviction had not been due to any fault on the part of the Crown. Mr. McSherry accepted that the outcome of such a motion depended on the exercise by the court of its discretion. He pointed out, however, that the appellant had been in custody since February 1988, and maintained that it would be unfair and unjust to expose him to further proceedings. He also drew attention to the transcript of the interview of George McAvoy on 13 July 1995, in which he appeared to retract a substantial part of the evidence which he had given at the trial.

We consider that we should grant the authority sought by the Advocate depute. The Crown case at the trial was founded in part on an explicit admission to the murder which the appellant was alleged to have made to police officers on 10 July 1985. No jury has had the opportunity yet of hearing not only the evidence of George McAvoy, but also the evidence which James McAvoy and Mrs. Carroll are also able to give. It is, in our view, in the public interest that the question of the appellant's guilt should be retried.