Scottish High Court of Justiciary Decisons

JOHN McINTOSH McLAY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 31 (8th March, 2000)

[1] The appellant was charged, along with Steven Harkins, on an indictment principally concerned with a series of incidents which occurred on 24 February 1992. The first three charges on the indictment were directed against Harkins alone: the first was a charge that on 10 February 1992 he had a knife in a public place; the second was that on two occasions on 24 February 1992 he presented a knife at Paul McLean, threatened him and attempted to rob him; the third was a charge of having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953, on the same date. Charge 4 alleged that the appellant and Harkins conducted themselves in a disorderly manner, shouted and swore and threatened violence. Charge 5 alleged that Harkins and the appellant assaulted Joseph McLeod, then in a motor vehicle stationary in Whitacres Road, and, inter alia, stabbed him on the arm with a knife to his severe injury and permanent impairment. Charge 6 was a charge of malicious damage to the motor vehicle, against both accused, and charge 7 was an associated charge of breach of the peace, including challenging McLeod to fight and kicking stationary motor vehicles in the road. Charge 8 alleged that Harkins and McLay entered another stationary motor vehicle and assaulted Steven McDermott, repeatedly punched him on the head and body, repeatedly stabbed him with a knife, and otherwise assaulted him, pursued him to a house at 39 Whitacres Road and murdered him. McDermott was a taxi-driver who unfortunately happened to arrive during the disorderly episode. There were four further charges of minor assault, malicious damage and breach of the Bail Scotland Act. A number of these charges were dropped by the Advocate depute, the important matters being the assault on McLeod and the murder of McDermott, but it is clear that the major charges arose in the course of an extended episode of disorderly conduct. The jury found both the appellant and Harkins guilty of the assault on McLeod but, in relation to the appellant, deleted all the serious elements of the charge, including the use of a knife. The jury convicted the appellant of the murder of McDermott and found that charge not proven as against Harkins. The appellant was detained without limit of time on the conviction of murder and the trial judge admonished him in relation to the assault on McLeod and in respect of a minor Bail Act contravention, of which he had also been found guilty.

[2] In his report, the trial judge says that there was no indication in the evidence that McDermott was stabbed by more than one assailant and adds that it was clear on all the evidence that the assailant was either Harkins or the appellant and that he directed the jury that they would not be justified in holding either accused guilty of murder on the basis of art and part. He continues:

[3] The judge goes on to point out, in a general way, that there was a substantial body of evidence which was exculpatory of the appellant in so far as it tended to identify Harkins as the assailant and that the evidence tending to inculpate the appellant was "forensic and narrow rather than circumstantial".

[4] It may be added that, from the trial judge's charge, it appears that there was evidence that Harkins had a knife at the time of the alleged assault on Paul McLean and there was evidence from one of the girls that Harkins had given her a knife and got it back from her when the car, driven by Joseph McLeod, drove up. That girl also identified a knife later found as being the same knife (Charge 36B). There was evidence that McLay was behaving violently, like a hooligan, kicking in windows and so on, but no evidence directly implicating him in having or using a knife at that stage. There was also, as the judge's report also mentions, evidence that after the incident involving Joseph McLeod, Harkins went down the street holding a knife out in front of him, until McDermott's car drew up (Charge 41D-E). When the judge came to deal with the incident involving McDermott, he reminded the jury that there was evidence from a number of witnesses which, identified, or might be interpreted as identifying, a particular jacket, which was label 36, as a jacket worn by the person who assaulted McDermott, and evidence that at some stage at least McLay wore that jacket. The judge warned the jury to take great care in interpreting that evidence, and in particular to consider whether witnesses might be drawing inferences, which might be mistaken, rather than describing what they had seen. He also referred, at page 46D, to purported identification of the assailant by face and at 47B said to the jury:

[5] The judge then repeated the warning to the jury to take care in interpreting and applying that evidence. He then dealt with evidence that, at a later stage, the appellant was heard to say that he had dropped something on the path in the vicinity of which the knife was found and also to evidence of what he describes as a curious incident in which the appellant seemed to think that he had been stabbed and that he must have been stabbed by Harkins and Harkins allegedly said that he stabbed the guy that he inferred or thought had stabbed McLay. Finally, in dealing with the evidence, the judge reminded the jury that there was evidence of extensive bloodstaining on the jacket, label 36, and that some of that blood was consistent with being McDermott's and no one else's. The judge carefully directed the jury to consider the possibilities as to how blood could have got onto the jacket, if it was worn by the appellant, without him having been the assailant.

[6] Both the appellant and Harkins had lodged notices of incrimination against each other. The appellant gave evidence but Harkins did not.

[7] It is clear from the report, and the charge, that there was sufficient evidence to entitle the jury to find the appellant guilty. We should mention that the Crown submitted that it would have been open to the jury to convict the appellant of murder on the basis of concert between him and Harkins, notwithstanding the directions given to them, and therefore that inculpation of Harkins did not necessarily exculpate the appellant. It is true that, as the advocate depute submitted, the jury should strictly have returned a verdict of not guilty rather than not proven in regard to Harkins, on the basis of the directions which they received. However, we cannot know how the jury might have assessed the evidence if the directions had been different and we do not think that the appeal could be refused on this ground.

[8] The appellant's note of appeal proceeded on the ground that there was now available evidence that Harkins had confessed his sole culpability of the murder to a number of people both before and after the trial and that neither the appellant nor his advisers were aware of that evidence before or during the trial. The appeal first appeared on a roll of 6 November 1992. It was continued then and on two subsequent occasions for various reasons and was eventually heard on 13 May 1993 by three judges. By a decision dated 6 July 1993, the appeal was remitted to be heard by a court of five judges and was eventually so heard on 15 February 1994. On 25 March 1994, the court (Lord McCluskey dissenting) decided to refuse to allow the additional evidence to be heard. The purpose of the remit to five judges was to consider whether the decision in Perrie v. H.M. Advocate 1991 S.C.C.R. 251 was correct and the court of five judges held, by a majority, that it was. The decision is reported as McLay v. H.M. Advocate 1994 S.C.C.R. 397. On 23 December 1997, the Secretary of State announced that he had decided to exercise his powers under section 124 of the Criminal Procedure (Scotland) Act 1995 to refer the case again to the High Court of Justiciary to enable the court to have a further opportunity to consider the issues raised by the appeal. After further procedure, the court, by an interlocutor of 4 November 1998, continued the appeal to allow the evidence of certain witnesses who had sworn affidavits, namely Neil Brown, Colin Smart, Terence McDermott, Christopher Docherty, Thomas Maitland and Patrick Gaughan, to be heard, and also to allow evidence to be heard from Harkins, notwithstanding the fact that he had refused to co-operate in any way with the appellant's solicitors and had not sworn any affidavit. Harkins died on 5 January 1999, without ever having given a statement or an affidavit. The evidence of Brown, McDermott, Docherty, Maitland and Gaughan, along with the evidence of an additional witness, William Blake, was heard on 22 February 2000 by this court. The evidence of Smart and some evidence from the appellant himself was heard on 7 March 2000, after which we also heard submissions in the appeal. Arrangements had been made that another appeal, the appeal of Stewart Anderson Kidd, in which questions of additional evidence also arise, should be heard immediately after the submissions in the present case.

[9] The additional evidence really falls into four chapters. The first contains the evidence of Brown and Smart. Brown was convicted of murder and sentenced to detention for life in June 1992. Smart was, at the time of giving evidence, serving a sentence of eight years detention following a conviction for assault. Both witnesses said that about the time of the trial of the appellant and Harkins they were also on trial at the High Court in Glasgow in Lanarkshire House and travelled on the same prison bus to and from the court as did the appellant and Harkins. Brown said that he was aware of the conviction of the appellant and that he had known of Harkins previously. In the course of one journey, during which he was handcuffed to Harkins, Harkins had said that he and the appellant were being done with murder but he, Harkins, was the only one with a knife. The two of them were full of jellies but he was the one that did it but he was not going to take the derry for it (that is, admit it). He did not say anything that Brown remembered about blaming the appellant or the appellant blaming him. Brown did not remember Harkins saying anything about stabbing any other person. There were 40 to 50 people on the bus at the time and the appellant was there but three or four seats behind. He told the appellant about the conversation some time later when they were both in Dumfries Prison. They were not in the same prison at the time of the trial. When asked why he did not say anything about the admission at the time, Brown said that he was thinking of his own trial, that if the appellant had not done it he would not be convicted and, in cross-examination, that he did not know that Harkins had been going to incriminate the appellant and if he had known he would have told the appellant. Brown also referred to the deceased man being a taxi driver but said that he had been aware of that before he talked to Harkins because it had been in the papers: he did not recall Harkins saying any more about damaging a car or stabbing another man. He had suggested that Harkins should hold up his hands to it but Harkins had said that he was not going to take the blame, just that they were in an argument and he was the only one with a knife. Smart also described travelling on a prison bus when Harkins said something about what he was in for and what had happened. He said that Harkins said that he had murdered somebody but added that there was a sort of bravado about what he said. Harkins had said that he had done the murder but he was not willing to put his hands up to it. At that time, according to Smart, the appellant was sitting next to him and handcuffed to him, while Harkins was in the seat behind. He could not recall whether Harkins was sitting back or leaning forward and he did not know what the appellant was doing or what he might have heard. When asked whether he thought it was important, he said that Harkins was full of bravado and said that he had stabbed a guy and he was just talking normally. He did not tell the appellant because it was nothing to do with him. He probably had said to Harkins that he should put his hands up to the charge.

[10] The second chapter contains the evidence of McDermott and Docherty. These witnesses were both charged, along with Harkins, on another indictment which was called at the same sitting of the High Court in Glasgow as the trial of Harkins and the appellant. That indictment was disposed of by the Crown accepting pleas of guilty to assault and robbery from McDermott and Harkins and a plea of not guilty from Docherty. McDermott was sentenced to 4 years imprisonment and Harkins to 6 years imprisonment on that indictment. By the time he gave evidence, McDermott was serving a ten year sentence for culpable homicide imposed on him in May 1996. Docherty, at the time of giving evidence, was in custody on an alleged breach of probation. McDermott said that after the pleas had been accepted in the case involving himself, Harkins and Docherty, Docherty had been taken downstairs to a holding cell because he was still in custody on another matter. He was aware that the appellant had been convicted a few days earlier. After sentence had been imposed, while he and Harkins were going down in the lift, Harkins had expressed pleasure at the sentence because he was expecting a life sentence. He said that he had felt he was bang to rights and, more or less, that he was the man that done the murder and it was "twos up to the other guy". McDermott had known that it was a case of a murder of a taxi driver, but he did not give any evidence of Harkins telling him any detail about it. Harkins' attitude was that he was not interested, just glad he never got the life. He thought that there was a bit of the two (Harkins and the appellant) blaming each other but he did not know. Not long after, someone, a lawyer, had come to see him and asked him about it. He thought that he had told someone about the conversation, perhaps Neil Brown. In cross-examination he agreed that the conversation with Harkins just after his conviction could be dated to 28 June 1992, but he had not got to know Brown until he met him in Dumfries Prison and had talked about it. He thought that he had heard that Brown was seeing a lawyer and had said he would see a lawyer as well but he was not too sure. In any case Brown had not told him what to say. At the time of the conversation, he had been in the lift with Harkins and two policemen. Docherty had not been present. Docherty, on the other hand, said that he had not gone down in the lift after his plea of not guilty had been accepted but had just waited outside the court. Harkins had said that he was over the moon at having got 6 years. He had put his hands up and got Docherty off the assault and robbery and it was twos up to McLay for getting life. He had no sympathy for the appellant because the appellant was trying to incriminate Harkins. Harkins had just said that he had stabbed the taxi driver, he was full of temazepam and had smashed up motor cars and stabbed a Texaco delivery guy. Docherty said that he had told the appellant about this after his own trial and when he had been down at Dumfries. In cross-examination he said that he was confident the conversation took place in the lift with himself, Harkins, McDermott and two police officers present. Harkins had been upset at the appellant incriminating him but had not said anything about himself incriminating the appellant. Harkins had said that he had done it and he did not care what had happened to the appellant. Docherty said that he had met the appellant in Dumfries and told him. Later in his evidence, Docherty said that the material part of the conversation had happened in the cells, not in the lift. Harkins had been jubilant in the lift because he had got off but there were two policemen there and the statement had been made in the cells.

[11] The third chapter of evidence consisted of the evidence of Maitland and Gaughan. Maitland was convicted of murder in March 1991 and sentenced to life imprisonment. He was the appellant in the case of Maitland v. H.M. Advocate 1992 S.C.C.R. 759, which was also an appeal based on additional evidence and which was rejected by the High Court. Maitland said that he had met Harkins in C Hall of Shotts Prison and had seen reference to the case of the appellant in the papers. He had been interested because of the resemblance to his own case and had spoken to Harkins at about the end of June 1993. He had heard from others that Harkins had been telling people that he had done a killing for which someone else had been sentenced and he had asked a friend of Harkins to tell Harkins to see him in his cell. He had seen Harkins and asked him if he did do the killing that the appellant was in for and Harkins had said that he did. Maitland asked him why he did not tell a lawyer and Harkins had said that he would speak to someone but never did. Maitland had not been interested in any detail but only in getting in Harkins' own words that he had in fact done the murder. About six weeks after this conversation, on 8 July 1993, there was a riot in Shotts Prison which led to locking up and, later, dispersal of prisoners, and he had not seen Harkins again. In cross-examination Maitland said, after some hesitation, that he had not known the appellant in Shotts. He had known about the case from following it in the papers. He had not been so interested in June 1992 but had only been interested when he heard about it in Shotts. He had known the appellant since 1996 in Greenock Prison, when he had told the appellant, who had asked him if he would give a statement to a lawyer. He repeated the explanation that he had not been interested in the details because he only wanted to know from Harkins' own mouth that he had done the killing. Gaughan was also in Shotts, having been sentenced to life imprisonment in 1990 on two charges of attempted murder. He had previous sentences of 10 years imprisonment for robbery and 6 for assault to severe injury. In 1997, he had met Harkins in a laundry room and in conversation, quite a group being present, Harkins had admitted that he had committed a murder for which he had been found not proven. Harkins said that along with the appellant he had perpetrated the crime and that a taxi driver had been stabbed. There had been some confusion at the trial about a jacket. It had been said that he should go and help the other boy out, but Harkins said that he could not do that because his mother wanted him to get parole. No one had much liked Harkins, who was a wee guy and strutted about like a gangster and caused a lot of trouble. Gaughan had got to know the appellant in Greenock Prison 6 months or so later and told him what Harkins had told Gaughan. Harkins had been quite open about this in Shotts. He thought that Harkins liked the notoriety and being one of the boys in the prison. He had seen a solicitor after he had met the appellant and had sworn an affidavit in 1998: he had served twice in Greenock after meeting the appellant. He had talked about the colour of the jacket, a yellow jacket, but nothing had ever been said about the jacket being bloodstained, the question was something about who was wearing the jacket. Harkins had said that he was wearing the jacket that there was a dispute about but no more than that and had not said where the jacket had been found or why it was important and there had been no mention of bloodstains, just of confusion about it in court. The appellant had not said anything about why the jacket was important when he had had a conversation with him, it had just been a matter of telling him about the events at Shotts.

[12] The last chapter of the evidence consists of the evidence of one witness, William Blake. Blake is a prison officer in Greenock Prison with 13 years service. He said that he knew the appellant, who had been on his work party and he had got on fine with the appellant. He had also known Harkins who had been on a work party, perhaps in 1993 or 1994, and he had got on okay with Harkins also. Harkins had been serving a sentence for another matter but he had got to know that Harkins had been acquitted of murder. At one point, Harkins and he were going through a gate while engaged in a work party collecting rubbish. Harkins had asked him if he had known the appellant and Blake said no; at that time he did not know the appellant. Harkins had said that the appellant had been his co-accused and that he was doing life for a murder that he had not committed. Blake had not been interested because it was raining and they were trying to get through the grill gate but Harkins went on and said "I know who did it, I did it". Blake thought this was very unusual but he was not very interested and went on to shut the gate. He had no knowledge of the circumstances and had not been interested because, he said, prisoners talk about many things which had nothing to do with him: they talked about this job or that job. However, when the appellant joined his work party he realised that he was the one that Harkins had been referring to. He knew that the appellant had an appeal in process and the appellant had approached him and asked him what Harkins had said. He did not know how the appellant had got to know about that but a couple of prisoners with him had mentioned it to him, saying that Harkins said he did the murder and he had said that Harkins had said the same to him: perhaps that had got back to the appellant. The appellant had asked him to give a statement to his solicitor. In cross-examination Blake said that he thought the conversation with Harkins was about the end of 1993 or 1994 and Harkins had not mentioned any appeal by the appellant. Harkins had got on with some of the other prisoners but not with all: he was noisy and not everyone's cup of tea. The same could be said about his relations with the other officers. He did not think that Harkins had sought him out to make a statement to him. His fiancée and Harkins' girlfriend had worked together but that was at a later date. He did not think Harkins was making a point, because he did not see what the point would be. The matter had come out of the blue. Harkins had said it but not asked him to do anything and it had not occurred to him to tell senior officers. The appellant had somehow found out and asked him about it. He had refused to give an affidavit at first and had not done so until after Harkins had died. Harkins had lived in the same area that he was in and he did not want to make statements and get harmed. He had been asked for a statement before Harkins died, by the appellant himself, but had not been prepared to give one.

[13] The only other evidence, as we have mentioned, was that of the appellant himself and the only point made by the appellant was that he said that he had not heard any conversation during any prison van journey. He could not recall being handcuffed to Smart at any time. He was aware, however, that Smart was in the bus and he had met him in the cells and he had been handcuffed to a number of different people at different times.

[14] Before going further we should set out the present law. The right to appeal against a conviction or sentence is conferred by section 106(1) of the 1995 Criminal Procedure (Scotland) Act. Section 106(3) provides:

[15] It is relevant to mention also at this stage that the provision made by section 259 of the 1995 Act for the admission of statements by an incriminee and statements by persons who have died have made material changes to the admissibility of statements as compared with the time at which the trial of the appellant was conducted.

[16] The power to allow an appeal on the ground of additional evidence dates back to the Criminal Appeal (Scotland) Act 1926 but the court took the view, particularly in Gallagher v. H.M. Advocate 1951 J.C. 38, that an appeal could not be allowed on this ground unless the court was reasonably satisfied that, if the jury had heard the additional evidence, they would have acquitted or, alternatively, that any verdict of conviction would have been overturned as perverse or unreasonable. That restrictive construction was based on the provisions of the 1926 Act to the effect that an appeal could only be allowed if the jury's verdict was unreasonable or unsupportable having regard to the evidence. However, section 106(3) of the 1995 Act, as originally enacted, provided simply that an appeal might bring under review any miscarriage of justice. There remained the restriction that additional evidence required to be evidence which was not available and could not reasonably have been made available at the trial. Subsections (3A) to (3D) were introduced by the Crime and Punishment (Scotland) Act 1997 to give effect to the recommendations of the Sutherland Committee and their effect is that the reasonable availability test has gone and a reasonable explanation is now all that is required.

[17] As regards the test which the court has to apply, there was considerable debate before us both in this appeal and in the other appeal heard at the same sitting, Kidd v. H.M. Advocate, as to whether there was inconsistency between Cameron v. H.M. Advocate 1987 S.C.C.R. 608 and Church v. H.M. Advocate 1996 S.C.C.R. 29 in regard to the proper way to assess the significance of additional evidence. That issue is fully discussed in the opinion of the Lord Justice Clerk in Kidd, to which we refer. The upshot is that the test to be applied is the test as explained in Church.

[18] There are two points which we should mention before proceeding to assess the effect of the evidence which we heard. The first is that the Crown accepted that the evidence of the statements made by Harkins was admissible after Harkins' death, as a result of the combined effect of section 259 and, if applied, section 106(3B) of the 1995 Act. At the time of the trial, however, evidence of Harkins' statements would have been inadmissible as evidence in favour of the appellant, as being hearsay (McLay v. H.M. Advocate 1994 S.C.C.R. 397). The second is that, while the Crown accepted that there was reasonable explanation, so far as the appellant was concerned, for the evidence not having been heard at the trial, since he did not know of the statements made at the time of the trial and could not have known of the later statements, an argument was advanced to the effect that the appellant also required to put forward a reasonable explanation for Harkins' apparent change from the position which he had adopted at the trial. It was submitted that Harkins had lodged a notice of intention to incriminate the appellant and given instructions for the trial to be conducted on that basis, and that in that way he had clearly taken up a positive position, although he had not given evidence. Accordingly, it was suggested that, by analogy with section 106(3C), he should be required to explain his change of position and provide independent support for that explanation. The simplest answer to that submission is that the provisions of section 106(3C) are specifically limited to the case in which the fresh evidence tendered comes from a person who has given evidence in the original proceedings and there is no room for extending the subsection by analogy. However, on the view which we take of the evidence tendered in this case, it is not necessary to reach a concluded view on the submission.

[19] Much of the additional evidence which we heard was obviously unsatisfactory, in a number of ways. The evidence of Brown and Smart was obviously inconsistent, but that is not necessarily crucial, since they might have been attempting to describe different conversations in the course of different journeys. More importantly, it is difficult to accept that Harkins might have been claiming responsibility for the murder of McDermott when the appellant, whom he was incriminating, was in the same bus (on Smart's evidence within a very few feet) without the appellant's attention having been directed to him. Neither Brown nor Smart gave any convincing reason for not telling the appellant at once. The evidence of McDermott and Docherty was also obviously inconsistent, and in this instance it is clear that the witnesses were purporting to describe the same incident. Docherty's evidence was, in addition, inconsistent within itself. The evidence of Maitland and Gaughan is not so obviously open to strong criticism, and it is important to consider their evidence along with that of Blake, whom the Crown accepted as credible. That is not to say, however, that their evidence is free from question. It is surprising, given the nature of Maitland's interest, that he should have asked no questions whatever of Harkins and he was noticeably hesitant in answering the question whether he had known the appellant in Shotts Prison. Gaughan gave evidence that Harkins had mentioned confusion about a jacket, but there was apparently no mention of one very important factor, the bloodstaining on the jacket produced at the trial. Blake's apparent lack of interest in what Harkins said does not suggest that he took it very seriously. There is also the rather curious fact that the appellant somehow learnt that Harkins had spoken to Blake, although Blake had not mentioned it to anyone. Nevertheless, looking at the evidence of Blake, Maitland and Gaughan, a reasonable jury might have accepted that Harkins did claim on several occasions that he had committed the murder for which the appellant was convicted: and, if that is so, a jury might also have accepted that these claims by Harkins dated back to a time close to, if not even contemporary with, the trial.

[20] It remains, however, to consider whether the evidence that Harkins made those claims is of such significance as to justify the conclusion that the verdict of the jury, reached in ignorance of it, constitutes a miscarriage of justice. It is not enough that it might be accepted that Harkins claimed to have committed the murder: the question remains what is the value and materiality of the evidence that he made those claims as evidence of the truth. In considering that question, it is necessary to bear in mind that Harkins lodged a notice of incrimination of the appellant at the trial, (although he did not give evidence), and refused to give any affidavit, or even statement, to the appellant's advisers even when he had nothing to lose by doing so. Similarly, the evidence we heard indicates that whenever he did claim responsibility for the murder, he did so on the basis that, for one reason or another, he would not acknowledge it openly or officially. The evidence also suggests strongly that Harkins was regarded, by other prisoners and by prison officers, as boastful, a nuisance and a person who was in the habit of indulging in bravado. It is necessary also to have regard to what happened at the trial and to bear in mind that there was sufficient evidence, which the jury accepted, identifying the appellant as the assailant in the murder of McDermott, that the jury had before them the evidence of the incident in which Harkins had claimed to have stabbed McDermott, and, perhaps also, that both the appellant and Harkins were in a state of high excitement at the time of the attack, probably brought about by drugs. This case is perhaps less straightforward than that of Kidd v. H.M.A., in which the additional evidence relied on to exculpate the appellant can be dismissed as incredible or unreliable. Looking at all the circumstances, however, we have come to the conclusion that the additional evidence is not of such significance as to show that the absence from the trial entails that a miscarriage of justice has occurred. It follows that the appeal must be dismissed.