APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C796/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEALS AGAINST CONVICTION
PAUL ANTONY MOWAT,
MUIR JAMES REID McLAUGHLIN and
RYAN JAMES RENWICKS
HER MAJESTY'S ADVOCATE
Appellants: Sutherland, Q.C., Shead; Drummond Miller: Murray, Q.C., Sharpe; Drummond Miller: McBride, Davies; Balfour & Manson: J. Davidson, Q.C., Sanderson; Drummond Miller:
Boag-Thomson, Q.C., Hamilton; Balfour & Manson: Burns, Q.C., Johnston; Gray Muirhead
Respondent: Brodie, Q.C., A.D.; Crown Agent
25 June 1999
We have before us appeals against their conviction of murder by Paul Antony Mowat, Peter Davidson, Martin McGlinchey, Shaun Burns, Muir James Reid McLaughlin and Ryan James Renwicks. At their trial in the High Court at Glasgow they appeared along with a co-accused, Shaun Reilly, but during the trial his plea to a reduced charge of assault was accepted by the Crown and he subsequently gave evidence for the Crown. The assault to which he pled guilty involved him repeatedly punching and kicking the deceased on the head and body.
All those who were involved in the incident were young. The victim was Robert O'Donohue who had been drinking and playing pool on the evening of Friday 14 June 1996. He left a night-club in the Coatbridge area at about 2.30 a.m. on Saturday and the closed-circuit television cameras captured him as he made his way through the town centre on a route which was to take him to the park at Heritage View. Meanwhile in the town centre a group of youths had formed near the night club and at about three o'clock police officers saw the group, including one of the accused, and two girls walking in the direction of the park. In fact by the time the group reached the park it included all the accused and it had been joined by the deceased.
They all went into the park; the deceased was walking with Paul Mowat and one of the girls, Ann Burns. The deceased touched Miss Burns' bottom and Paul Mowat took exception to this, even though Miss Burns was not annoyed. The group re-formed near to a burn in the park and Mowat spoke to the other youths. The group then moved towards the deceased and attacked him: he was knocked to the ground and the group formed round him, punching and kicking him. The two girls shouted at them to stop, thinking that they were going to kill the deceased. He then rolled down a slope and landed in the burn, where he ran up and down trying to escape. The members of the group formed a line along the bank of the burn and so prevented his escape, but he eventually managed to crawl out of the burn on to the opposite bank. Members of the group pursued him by crossing the burn by a bridge and in a wooded area on the far side of the burn he was again attacked and eventually left naked, except for his socks. The youths returned to where the girls were. The deceased's body was found in that condition by a man walking his dog at about 7.15 a.m.
The post-mortem examination showed that the deceased had sustained more than seventy different injuries, some consistent with the use of weapons, others with punching, kicking and, in particular, stamping. Stones were found in the vicinity of the body which, when held in an attacker's hand, could have caused some of the injuries, in particular an indented fracture of the skull. Considerable force would have been required. The deceased had sustained fractures to his head, face and ribs. Many of the external injuries were associated with internal bruising. The injuries to the head were caused by "very extensive stamping with considerable force" which caused shaking of the brain. A vital artery had been ruptured and this had caused massive bleeding into the spinal canal and very rapid death. There were injuries to the top and back of the head which must have been caused when the deceased was lying face down. There were injuries to his face which indicated that his body had been dragged. The fatal injury was most probably caused in the later stage of the assault.
The jury returned their verdicts on 22 October 1996, but the hearing of this appeal did not take place until the beginning of June 1999. The delay was caused in the first place by the failure of the trial judge to prepare a report until September 1997. Leave to appeal was given in December and, for various reasons, a procedural hearing had to be held in July 1998 when the court ordered that the shorthand notes of certain parts of the proceedings should be transcribed. In the event this order could not be carried out in full since, after the lapse of time from the trial, one of the shorthand writers, who was no longer using shorthand, was unable to read his notes. The result was that the court did not have available any transcript of counsel's speeches nor a transcript of the first part of the evidence of Ann Burns. We have held in Carroll and Santini, 16 June 1999, unreported, that the fact that there is no transcript of part of the proceedings available for the use of counsel and the appeal court does not in itself constitute a miscarriage of justice justifying the quashing of a conviction, though it may, of course, be material in deciding whether an appellant has satisfied the court that there has been a miscarriage of justice. At the hearing of these appeals we found that we could deal satisfactorily with the arguments advanced to the court, even though the parts of the proceedings in question had not been transcribed.
Before turning to the individual appeals it may be worth identifying the area of dispute. We should explain first that in none of the appeals is it argued that there was insufficient evidence on which the jury could have returned the verdict which they did. Counsel for all the appellants accepted that there was ample evidence of the involvement of the appellants in the first part of the attack on the deceased, before he rolled down the slope and landed in the burn. That meant that there was ample evidence on which a jury would have been entitled to convict them of assault and for this reason, of course, it had not been open to counsel at the trial to make a submission of no case to answer in terms of Section 97 of the Criminal Procedure (Scotland) Act 1995. Although counsel might have made a common law submission, in fact none of them did so. Next, two of the appellants, Cowan and Burns, accepted that they had been involved in the incident on both sides of the burn. At the appeal, the position of counsel for Cowan was that the court should allow the appeal to the extent of substituting a verdict of guilty of culpable homicide for the verdict of guilty of murder. Counsel for Burns argued only one point which we deal with immediately below. The true issue for the remainder of the accused at the trial and at the appeal related to their involvement in the incident on the far side of the burn.
The grounds of appeal argued before us all related to alleged misdirections by the Trial Judge in his charge to the jury. We shall examine the individual points in more detail, but we should observe at the outset that the charge was in no sense elaborate. The trial began on Thursday 10 October and the evidence finished on Friday 18 October. The speeches for the Crown and defence were all given on Monday 21 October and the Judge charged the jury the following morning, with the jury retiring to consider their verdict at eleven o'clock. The Judge did not go into the evidence at all, saying that
"although the case has taken some days I am sure that the evidence is fresh in your minds and it is purely for you and not for me to assess it. Also, you have had the benefit of analyses of the evidence from counsel and their submissions upon it to which you will give such consideration as you feel appropriate."
Moreover, he approached the legal issues in the case on a general basis, not distinguishing in any way among the various accused, even though, as we have noted, they were not all adopting the same position and the issues for the jury would, to some extent at least, vary accordingly. The underlying theme of the individual criticisms of parts of the Judge's charge was to the effect that he had not given adequate directions for the jury in what was a complicated task for them involving, as it did, six accused and somewhat different issues for each.
Judge's Remarks about Speeches of Counsel
With these general observations, we turn first to a ground of appeal which was common to all the appellants and was indeed, as we have remarked, the only ground argued by counsel for Shaun Burns. The ground arose out of a passage in the Trial Judge's charge to the jury, where he was giving them the usual standard direction about the need for them to rely on their own recollection of the evidence. What he said was this:
"It is upon the evidence that has been properly laid before you and upon that evidence alone that you must base your decisions, plus you must put out of your minds entirely any prejudice or sympathy you may have in the case, or for the consequences of any verdict and indeed anything said or argued by counsel on either side in their closing addresses which was not based solely and accurately on the evidence led before you. I say this because, although it is entirely a matter for you, it did seem to me that more than one defence counsel made suggestions to you which were of his or her invention rather than a true reference to the evidence actually led. Now, in this duty, ladies and gentlemen, it is for you and for you alone to decide what evidence is acceptable to you and upon which you are prepared to base your decisions."
The criticism related to the sentence beginning "I say this because ...." The general tenor of the criticism can be gauged from the ground of appeal (b) for Mowat where it is said that the direction was unjustified and unfair to him:
"If the learned trial judge had any specific criticism to make of submissions made by any counsel he should have specified the submissions he was referring to and the way in which they did not accord with the evidence. Said direction was general, non-specific and unfair to all the accused including this appellant and undermined submissions made by his counsel to the jury."
In reply to this ground and to the similar grounds of other appellants whose counsel he had not intended to criticise, the Trial Judge said:
"I accept, to some extent, the criticism made in this ground of appeal. I should have been more specific and named the two advocates to whom I was referring and perhaps even quoted the remarks I found offensive. I was not referring to counsel for the appellant."
In the case of Burns, for whom Mr. J. Davidson, Q.C., did not appear below, the Trial Judge said this:
"I accept, to some extent, the criticism made in this ground of appeal. I should have been more specific and named the two advocates to whom I was referring and perhaps even have quoted the remarks I found offensive. Counsel for the Appellant was one of the two I had in mind. I do not recall exactly what she said but it had to do with the length of time the Appellant had been over the burn. The Appellant had not given evidence and there was no other evidence to support the assertion that she made."
In argument before us counsel simply underlined the point which was made in the ground of appeal. All accepted that a specific reference to any point on which counsel had mis-stated the evidence would have been not only in order but indeed necessary. The effect of the actual comment in this form was quite different, however: it cast inspecific doubt upon all the speeches made by counsel and the jury, having been so directed, might well have thought that all or any of the submissions made by all or any of the counsel representing the accused had amounted to "invention" on the part of counsel rather than to "a true reference to the evidence actually led". The contrast between the "true evidence" and the "invention" of defence counsel was said to be particularly striking and damaging. It was impossible to know what effect the comment would have had on the jury's consideration of the evidence when the jury had been told, in the passage which we have quoted already, to give to counsel's analysis and submissions "such consideration as you feel appropriate." In all the circumstances the misleading direction had given rise to a miscarriage of justice and the appeals should be allowed.
There is no doubt that, as the Trial Judge himself acknowledges, the comment in this particular form was ill-judged. For present purposes it does not matter whether it would have been justified in a more specific form referring to particular passages in the speeches of two counsel, since the damaging aspect of the comment lies precisely in it being inspecific and directed at no particular passage in counsel's speeches. The question for us is whether, though ill-judged and broadcasting criticism when any criticism should have been focused, the passage would have had the effect of generally undermining the submissions advanced by counsel. We have come to the conclusion that it would not. The passage occurs in the midst of otherwise unexceptionable directions to the jury to disregard any comments by counsel which were not based on the evidence and to use their own recollection of the evidence. All that the Trial Judge is actually doing is saying that in his view it is particularly important for them to use their own recollection in this case because, although it is a matter for the jury, it seemed to him that more than one defence counsel made references to the evidence which were not correct and were to that extent an invention. In other words he is mentioning a special reason for giving the direction which the jury is always given anyway. Even supposing - as may well have been the case - that the jury were left in doubt as to the passages which he had in mind, but none the less applied the direction, all that they would have done was to put out of their minds anything said by counsel which was not based solely and accurately on the evidence as recollected by the jurors themselves. There is nothing in what the Trial Judge actually says which would justify the jury in going any further and, for instance, rejecting wholesale the submissions made by counsel, whether or not based on an accurate account of the evidence.
For these reasons we cannot hold that the direction gave rise to the miscarriage of justice for which counsel contended. We therefore reject this ground of appeal for all the appellants and, since it was the only ground advanced on behalf of Shaun Burns, we refuse his appeal.
Paul Antony Mowat
On behalf of Mowat Mr. Sutherland, Q.C., argued that the trial judge had misdirected the jury as to the definition of culpable homicide, which was, he said, critical to this appellant's case since the only issue for him had been whether his conviction should be for murder or culpable homicide. Within that context Mr. Sutherland referred to certain passages from the transcript of Dr. Murray's evidence which, he said, would have provided a sufficient basis for the jury convicting of culpable homicide rather than murder, but we do not need to examine these since the Trial Judge left it open to the jury to return a verdict of culpable homicide and the Advocate Depute did not argue that he had been wrong to do so. For that reason alone, it was necessary for the Trial Judge to give the jury adequate directions to enable them to return the appropriate verdict.
The Judge began by giving definitions of assault and murder. Counsel accepted that the directions on these definitions had been correct. Having given them, the Trial Judge said:
"Ladies and gentlemen, in a charge of murder it is always open to a jury to bring back a verdict, a lesser verdict, of culpable homicide and therefore I must define that crime also for you. Where an assault takes place resulting in death but in the absence of such intent to kill, or in the absence of such wicked recklessness as I have defined it, then that would constitute the lesser crime of culpable homicide. Culpable homicide is the name given to a killing which is neither accidental nor justified, where the accused, causing death, has been rash, negligent or careless without regard to his neighbour's safety. That then, ladies and gentlemen, is the definition of murder and of culpable homicide. Certain counsel have, on behalf of their clients, accepted responsibility for the death of Robert O'Donohue but have suggested to you that the appropriate verdict is not murder but culpable homicide and in those cases that will be for you to determine but you will bear in mind the definitions I have given and the factors that you must take into account."
Mr. Sutherland said that, if the Trial Judge had stopped after the sentence beginning "Where an assault takes place", this would have been a sufficient direction in this particular case and it would not have been open to challenge. The problem arose with the next sentence since it was not correct to say that in the modern law someone was guilty of culpable homicide if a merely negligent or careless act resulted in death. The true position was that the act had to be grossly negligent or careless. Counsel referred to Macdonald's Criminal Law, pp. 96 and 101 where it is said, for instance, that culpable homicide is committed if death result "from gross fault or negligence in the management of vehicles." This passage reflects the development of the law to which Lord Justice Clerk Aitchison drew attention in Paton v. H. M. Advocate 1936 JC 19 at p. 22. As Lord Sutherland pointed out in the course of the argument, however, in the present case it was accepted that the deceased had died as a result of assault. So, the part of the definition of culpable homicide which the jury required to apply was the part contained in the sentence which counsel did not criticise; the element which was criticised was superfluous. Counsel did not demur, but argued that the part which he criticised none the less had an effect on the appellant's position since, by understating the degree of fault required for culpable homicide, the Trial Judge had not only given the impression that the crime of culpable homicide was more trivial than it was, but had also by implication suggested that the crime of murder covered a wider range than it did. The jury might therefore have reached the view that they could convict of murder in circumstances where the degree of recklessness would not truly fall within the range of wicked recklessness, as that term is usually understood.
Skilfully presented though it was, the argument falls to be rejected. Like the previous argument, it relies on seeking to expand the potential impact of the Trial Judge's words beyond their context. He gave the jury a proper direction on murder and in returning their verdict of murder it must be assumed that they applied that direction and concluded that the conduct of those who assaulted the deceased displayed the requisite wicked recklessness. The alternative was for them to return a verdict of culpable homicide based on the assault on the deceased. Again, there is no criticism of the part of the Judge's directions dealing with that kind of culpable homicide. Given the extent of the attack involving kicking and stamping, it is easy to see why the jury would have chosen to return the verdict of murder rather than of culpable homicide in this case. If the facts had been marginal, there might perhaps have been some basis for inferring that the jury's decision to return that verdict had been influenced by a misunderstanding of the quality of the actings required to constitute murder. Here, however, there is no reason whatever in the circumstances to suggest that the Judge's remarks on culpable homicide due to rash or negligent actings had any such effect. It follows that the appellant has failed to establish that there was any miscarriage of justice in his case and his appeal must be rejected.
Need for Specific Directions
Although the submissions for Peter Davidson, Martin McGlinchey and Ryan Renwicks were all presented in slightly different ways and the argument developed as the appeal hearing progressed, their counsel were really concerned to make the same kind of point. We can therefore treat certain aspects of their arguments together.
The evidence at the trial suggested that, once the injury which led to the deceased's death had been inflicted, the deceased would have died within a short time. This meant that the case for the Crown was that the fatal blow had been struck, not during the first part of the incident, but during the second stage when the deceased was assaulted in the wood on the far side of the burn. The Crown led no eye-witnesses to that part of the attack. The only people who knew what had occurred were those present at that stage in the attack and none of the appellants gave evidence. After the incident was over, it appears that the appellants regrouped in the presence of the two girls when certain remarks were made about what had happened. The Crown therefore relied on three elements: first, general evidence from which the jury might conclude that the appellants had been acting in concert at the second stage of the attack; secondly, the forensic evidence from which the jury would have been entitled to draw inferences as to the nature and quality of the attack on the deceased; thirdly, evidence as to remarks made after the incident. Although these elements were common to all three appellants, there were other adminicles of evidence which were specific to the cases against the individual appellants.
Counsel maintained that at this particular trial it had not been sufficient for the Judge to give purely general directions on all the points of law arising; what he required to do was, to a certain extent at least, to tailor his directions to the position of the individual accused. In order to convict the appellants, it was necessary for the jury to conclude that, at the second stage when the fatal blow was struck, they had joined in a concerted attack on the deceased. On that matter the Judge, having referred to the stock case of the participants in a robbery, then gave a single direction in these terms:
"Thus, in this case, ladies and gentlemen, if you are satisfied that the accused or two or more of them form a group, not necessarily by prior agreement but perhaps spontaneously, a group whose common purpose was to assault and inflict serious injury upon the deceased, then each would be guilty of all the acts carried out by the group. If you were satisfied that this group remained of a common purpose when it attacked Robert O'Donohue by punching and kicking him, when it somehow forced him in to the burn, when it prevented him from getting out by forming a line along the bank, when it chased him to the other side as he made his escape in that direction and when it recommenced its attack on the far bank and did him to death, then you would be entitled to find each member of that group responsible for his death no matter which of them inflicted the fatal blow."
Counsel argued that this direction might be good, so far as it went, but it did not explain sufficiently to a lay jury how they should apply the law to the facts of the individual cases.
The point was perhaps most vividly illustrated by Mr. Burns, Q.C., who appeared for the appellant Renwicks. It is therefore convenient to begin with his case. As the Trial Judge explains in his report to this court, Renwicks was detained by the police on Monday 17 June and interviewed by the police. The Crown relied on parts of the transcript of what he said as evidence against him and it follows that the exculpatory qualifications were available as evidence in his favour. At the interview he admitted being part of the group taking part in the first stage of the assault and also to crossing the bridge with the group. He also admitted being present when the fatal attack was made on the deceased in the wood. When referring to that attack, he spoke to seeing kicking and stamping and the use of weapons such as stones and a bottle. Nevertheless, he said that when he saw these things he was standing about five or six metres away from the others who were attacking the deceased. In particular, when challenged to say how he would explain any blood on his trainers if there turned out to be any, he replied "There wouldn't be any blood on my training shoes at all" and that there would be "None at all" on his clothing, his jacket and trousers. When the police officer said again "If it turns out later on, can you explain that just now?" he replied "No, 'cos there's none on it." and "No, there won't be any on it, 'cos ah wasn't there when he was bleeding." When the police officer asked "You did not go near him?", he replied "When he was bleeding." He maintained that position also later in the interview. There was evidence in the case which confirmed that indeed no blood had been found on Renwicks' clothing.
Although there was a body of Crown evidence incriminating him, on the basis of these adminicles of evidence there was clearly a substantial issue for the jury to determine in the case of Renwicks. He admitted standing some metres from where the final and fatal stage of the attack was being carried out, but said that he had not taken part in this stage of it. Before they could convict Renwicks the jury would have had to be satisfied that, despite what he said, he had still been a participant in the concerted attack on the deceased at that stage. It was the duty of the Judge to give the jury the necessary directions on what the Crown had to prove to establish that he had taken part - this was not something on which they could take their guidance from the speeches of the Advocate Depute and defence counsel. It was therefore necessary for the Judge to direct the jury that they would have had to be satisfied beyond reasonable doubt that Renwicks remained a member of the group which was responsible for inflicting the fatal blow on the deceased. Especially when Renwicks was admitting being present, we consider that it was necessary for the Judge to explain clearly to the jury that mere presence would not be enough and that they had to be satisfied that he was not just present but actually participating in the assault. No such specific direction was given by the Trial Judge. In addition, there was no reference in the Judge's general directions on concert to the possibility that, even if there was a common plan, something might have happened which went beyond their plan and that a person who had been a participant at one stage might cease to be a participant at a later stage. A general direction of that sort might have been sufficient in this case, but there is no such general direction. It may conceivably be that a lawyer listening to the directions on concert might have been able to work out for himself that some such direction was implied. We are not, however, convinced that the jury would have understood how they were to apply the law on concert to the facts of Renwicks' case. Nor is this a case where the evidence against him was so overwhelming that we can say that a jury, properly directed, must have convicted Renwicks. We would add that, in view of the nature and circumstances of this savage and prolonged concerted attack, it was particularly necessary to make clear to the jury that they could and should discriminate among the accused in the process of arriving at their verdicts. There has therefore been a miscarriage of justice in his case and we must allow the appeal, set aside the verdict and quash his conviction.
The position of Martin McGlinchey is similar in relevant respects. He also gave a statement to the police upon which the Crown relied, but elements of which were exculpatory and available as evidence in his favour. Like Renwicks, he admitted taking part in the first limb of the assault and he also admitted crossing the bridge, but said that he had gone no further than the entrance to the wood from where he could hear sounds of the assault but could not actually see it. He said that he was standing with Shaun Reilly - who was, of course, the accused from whom the Crown accepted a reduced plea of guilty to assault during the course of the trial. Again, although there was evidence entitling the jury to convict him, on the basis of this evidence available to the defence there was a substantial issue as to the appellant's participation in the fatal assault in the wood. In his case also in our view the general direction given by the Judge did not provide adequate guidance for the jury in determining whether they were satisfied that McGlinchey was a participant on an art and part basis in that assault. A more specific direction, relating to the facts of the case against him, was required. In the case of McGlinchey also we find it impossible to say that, even with a specific direction, the jury would have convicted him of murder. It follows that there was a miscarriage of justice and that we must allow the appeal, set aside the verdict and quash the conviction.
At the hearing of the appeal Mr. Murray, Q.C., accepted that he could not support certain aspects of the written grounds of appeal. He none the less argued two points, which we deal with in reverse order.
The second point was to the effect that the Trial Judge ought to have directed the jury that, before they could convict Davidson, they had to accept as credible and reliable the evidence of both Ann Burns and Louise Cunningham in so far as they spoke to matters from which the jury would be entitled to infer that Davidson was part of the group which assaulted the deceased in the wood. We understood the Advocate Depute to accept that the case against Davidson depended on these witnesses. From his report as well as from the terms of his charge, it is plain that the Trial Judge considered that this point was adequately covered by his general directions as to the credibility and reliability of witnesses in the case and as to the need for corroborated evidence about the commission of the crime and the identity of the persons who had committed it. Mr. Murray acknowledged that these directions did indeed have a bearing on the issue, but submitted that, because of the importance of the point, they were not adequate in themselves: something more specific had been required.
As we have already observed, the Trial Judge chose not to analyse the evidence at all. Although we have held that, for the reasons which we have given, that approach was not adequate where there were more complex issues arising out of the evidence concerning Renwicks and McGlinchey, it does not follow that the same applies in the case of Davidson where those complications were not present. In his case we have reached the conclusion that the general directions on credibility, reliability and corroboration were adequate: the directions would have informed the jury that, before they could convict Davidson, they would require to accept the evidence of both girls; they would also have given the jury proper guidance as to how they were to approach their evidence. We must assume that the jury applied the directions properly and, on that basis, their verdict shows that they must indeed have found the evidence of the two girls credible and reliable on the critical matters. We accordingly reject this ground of appeal.
The other matter raised by Mr. Murray concerned the Trial Judge's directions on assault. It appears that at the trial counsel for Davidson addressed the jury on the basis that, if they were going to convict him of anything at all, it should only be of assault. He told the jury to listen carefully to the Trial Judge's direction on the point. As framed in writing, the ground stated that, despite this, the Trial Judge had not directed the jury that they could convict Davidson of assault alone. Mr. Murray conceded, however, that this was not the case and that he had actually given such a direction. He therefore reformulated his criticism by saying that, given that counsel had told the jury to listen carefully to the direction, the Judge should have given more prominence to the point in his charge: instead, he had concentrated on murder and culpable homicide, while really doing little more than giving the jury a definition of assault and telling them that they could return such a verdict.
It is true that the emphasis in the charge is on murder and culpable homicide. The significance of the lack of emphasis on assault, so far as Davidson is concerned, has to be considered in the context of his case as a whole. In his case there was evidence that he formed part of the group who pursued the deceased over the burn and that, when the youths returned after the assault in the woods, Davidson had blood on his hands. He was also present when Mowat said that they had been "booting into him" and had given him "a bad doing". Davidson himself said, "If the police say anything, don't say anything. You don't know any of us and you don't know what happened." Davidson did not give evidence, of course, but in addition when interviewed by the police he consistently refused to make any reply, on the advice of his solicitor. The result was that, at the trial, there was no alternative version of events based on evidence available to the defence for the jury to consider.
Although counsel for Davidson had told the jury that they should listen carefully to the Trial Judge's directions on assault, that could not in itself impose on the Judge a duty to give a more elaborate direction on the point if such a direction would not have been necessary in any event. The question therefore for us is whether, irrespective of what counsel said, the lack of any other direction on assault gave rise to a miscarriage of justice in the case of this appellant. The thrust of the Crown case was that Davidson had participated in the fatal assault in the wood. As the brief summary which we have given shows - and as Mr. Murray readily conceded - there was sufficient evidence from which the jury would have been entitled to infer that he did indeed take part in that assault. There was no contrary version in any statement from Davidson himself. The only basis upon which it is said that a verdict of assault only would have been appropriate was if the jury had concluded that Davidson was implicated in nothing more than the initial assault. Not only was there, however, ample evidence that Davidson had been involved in the assault in the wood and no evidence from Davidson to the contrary but, for the reasons which we have given already, we are satisfied that the jury must in fact have accepted the evidence of his involvement. In these circumstances we are satisfied that no more elaborate direction on assault was required and that there was no miscarriage of justice in this case.
Muir James Reid McLaughlin
The first ground of appeal for McLaughlin begins by criticising the directions which the Trial Judge gave on culpable homicide. For the reasons which we have already given in connexion with the appeal by Cowan, we are satisfied that nothing in the terms of the direction would have given rise to a miscarriage of justice in the circumstances where the case against the appellant was based on evidence that he had taken part in an assault on the deceased.
As developed before us by Mr. Boag-Thomson, Q.C., the thrust of the argument in support of McLaughlin's appeal was that the Trial Judge's charge had not been adequate because he had failed to highlight evidence to the effect that McLaughlin had dissociated himself from the attack on the deceased in the woods.
Counsel argued, under reference to a passage at page 119 of the notes of the evidence on Monday 14 October, that the witness Archibald Coleman had not identified McLaughlin as having been among those taking part in the assault at this stage. It is clear, however, from what the witness says at pages 122 - 123 that the particular passage refers to the first part of the incident when the assault ended with the deceased landing up in the burn. It does not therefore deal directly with the position in the wood, although it is fair to say that Coleman conceded that he had seen some of the same people as had been involved in the first stage crossing the bridge. There is, however, no need to explore the point further both because Coleman said that he could not see what happened in the wood and also because in a detailed statement to the police McLaughlin himself admitted that he had been present at the assault in the wood.
It was on this police statement that Mr. Boag-Thomson sought to rely as an evidential foundation for his contention that in McLaughlin's case the Trial Judge had required to direct the jury specifically on his defence that he had dissociated himself from the attack. When the statement is examined, however, it shows that the contention is wholly lacking in substance. What McLaughlin said was that he had been one of the first to run round when the deceased had gone into the wood. McLaughlin had tripped him up by clicking his heels and then everyone had started kicking him. He himself had kicked him on the face five or six times and, though he said that he had himself not stamped on him nor stood on him, he said that Mowat had done so while the others were kicking him. He also said that he had seen McGlinchey lift two stones and throw them at the deceased's head, but he did not say that he had been taking part in the assault at that time and, indeed, he said that at that stage he followed Shaun Burns who left the scene, as also did Peter Davidson. When they left, the deceased was still fully dressed and so McLaughlin's position was that he was not present at the very last part of the incident when someone stripped him.
In our view the statement made by McLaughlin to the police provides no basis whatever for saying that he dissociated himself from any part of the assault other than the removal of the deceased's clothes. On the contrary, it provides the strongest possible evidence that, so far from dissociating himself from the attack, McLaughlin was actually involved in it along with others. In that situation it is impossible for McLaughlin to argue that there was a miscarriage of justice because the Trial Judge omitted to direct the jury more fully on the issue of dissociation: indeed, if he had chosen to enter in detail on that topic, the Trial Judge would have had to draw attention to the potentially damning evidence which we have just narrated. That would have been to the detriment rather than to the benefit of McLaughlin's position before the jury. For these reasons the decision by the Judge not to give a specific direction on concert tied in to the particular position of McLaughlin was not prejudicial to him and gave rise to no miscarriage of justice. His appeal must therefore be refused.
The appeals against conviction of Paul Mowat, Peter Davidson, Shaun Burns and Muir James Reid McLaughlin are refused. The appeals against conviction of Martin McGlinchey and Ryan James Renwicks are allowed and the verdicts of the trial court are set aside and the convictions quashed on the basis of misdirections by the Trial Judge.