Act: Stacey, Q.C., Mason; McClure Collins, Edinburgh (First Appellant): Shead, Mackenzie; Capital Defence Lawyers, Edinburgh (Second Appellant)

Alt: Bain, A.D.; Crown Agent (Respondent)

13 December 2007

Introduction

[1] The appellants were, with two others, tried in the High Court at Glasgow on several charges, including the murder in January 2002 of James Connelly. These others were acquitted of the charges against them. The Advocate depute withdrew the first charge against the appellants. They were both convicted of the second charge (that of murder) and of the third charge (a charge of attempting to defeat the ends of justice by concealing weapons and clothing used and worn at the time of the commission of the murder).

[2] The first appellant lived with his partner and their child in a house on an estate in Dundee. In the early afternoon of 1 January 2002 Connelly and another man went to the first appellant's house, the other man's intention apparently being to purchase heroin there. An altercation took place between that man and certain women, the result of which was that the appellant and another man emerged from the house and chased Connelly away.

[3] Later that day Connelly and another associate, Peter Richardson, both fuelled by a cocktail of drink and drugs, decided to attack the first appellant's house in reprisal. They armed themselves with caning knives and a hammer. These knives, which were designed for use in berry picking, had a long blade hooked at the end with the sharp edge forming the inside edge of the hook. With these instruments they attacked the first appellant's house. The front door was subjected to an onslaught with feet, hammer and knives in the course of which the letter box was removed and deep gouges (evident on photographs used at the trial) made in the door. Items lying in the garden, including a tricycle and a push chair, were thrown at the windows of the house. The occupants, who included the appellants, the first appellant's partner and the child were understandably frightened and disturbed. Threats were made to their lives, including to the life of the child. This attack took place at about 10 p.m.

[4] The male occupants of the house then armed themselves with various weapons and emerged from it to chase the attackers away. At this Connelly and Richardson ran off, pursued by the appellants and their two co-accused, the latter of whom included a neighbour (Mohammed) who had emerged from his own house. Connelly was overtaken about 100 yards from the house. It is uncertain whether he slipped in the icy conditions which affected the footpath along which he had run and was then set upon by his pursuers or whether he turned to face them and was brought to the ground and then attacked.

[5] The attack was sustained and vicious. There was some evidence to the effect that there were initially four assailants but that at some stage Mohammed and the other co-accused (McHugh) withdrew, leaving the appellants to continue the attack. An important witness, Zoe Waterstone, who was 13 years of age at the time of the trial in September 2002, described the attack as having been pursued throughout by only two men. Towards the end of the attack (which was initially with other weapons) a replica samurai sword was produced by an assailant and driven into Connelly's lower back on the left side. It penetrated the chest cavity, the lung and the diaphragm and damaged the spleen, pancreas, gall bladder and several important blood vessels. The wound was about 20 centimetres deep and caused massive internal haemorrhaging which led to Connelly's death. This weapon may also have been used to inflict a number of cutting injuries to his head and face, though these injuries may have been caused by a different sharp instrument (a hooked implement) wielded by an assailant. Both these weapons were bloodstained with blood which matched the deceased's DNA. He had sustained additionally a number of defensive wounds. His head and body also showed signs of many blunt force injuries.

[6] Immediately afterwards the appellants made their way to a neighbouring house where, having threatened the occupants, they concealed weapons, including the sword and certain baseball bats, as well as items of bloodstained clothing, in a bedroom. This latter action led to their conviction on the third charge.

[7] The Crown's position at the trial was that the fatal wound with the sword had been inflicted by the first appellant towards the end of the attack on Connelly. The Advocate depute submitted to the jury that at that stage the second appellant was a participant in a murderous assault and should be convicted, art and part, of the murder. Alternatively, she submitted that the evidence could support a version of events to the effect that, at the time when the sword was used, all four accused were participant in an assault and that all four might, if the jury accepted that version, be convicted of murder. It was clear from their verdict that the jury held as proved the first of these two versions of events.

[8] The trial ran for some twenty days with a number of interruptions. The first appellant did not give evidence. However, there were placed before the jury video and audio tape recordings of an interview which he had had with police officers under caution on 3 January 2002. In that interview he stated that, against the background of the attack upon his house earlier described, he had emerged and participated in the chase of and an attack on Connelly. He insisted, however, that the only weapon he had used in that attack was a bamboo cane. He had done so when the deceased had turned on him with a knife. It was the evidence constituted by that statement which was advanced at the trial by counsel for the first appellant as the primary basis for the contention that he had acted in self-defence and, in any event, under provocation. (As noted later, a reference in her speech to the jury to culpable homicide may suggest, though the passage is far from clear, that counsel was leaving open the possibility that the jury might find that the first appellant was involved in a more serious attack upon the deceased leading to his death but that his responsibility for that death was mitigated by provocation.) The jury by their verdict clearly rejected these pleas.

[9] In his written (substituted) grounds of appeal the first appellant advanced four grounds, the last of which was that there was "no evidence available to the jury which would have entitled a reasonable jury properly charged to convict the appellant of murder". That last ground was not insisted on by Mrs. Stacey on behalf of the first appellant. She advanced argument, however, in relation to the first three grounds. These related to certain criticisms directed against the charge given to the jury by the trial judge, being criticisms not of what he had said to them but rather of what he had failed to say. (Suggestions in the written grounds of appeal that the trial judge had mis-stated the evidence in so far as it related to the first appellant were withdrawn.) These criticisms, advanced against the background of the length and complexity of the trial and the confused state of the evidence led at it, were of omissions in the trial judge's treatment of self-defence and of provocation and of the basis upon which the jury might find that the first appellant was actor in the use of the sword.

[10] The trial judge, in elaborating on the matter of the onus of proof, referred (at pages 10-11 of his charge), by way of example, to the fact that the first appellant had put forward a special defence of self-defence. He explained that it was for the Crown to disprove that defence. Shortly thereafter (at pages 13-16) he gave to the jury general directions as to the use which they might make of extrajudicial statements which were "mixed" statements. Shortly thereafter he returned to the matter of special defences, including those of self-defence and of alibi, one of the co-accused having advanced the latter defence. The following day the trial judge, in continuing his charge, gave to the jury directions on what was constituted by the defence of self-defence, including the three "conditions" of that defence.

[11] None of these observations or directions was criticised by counsel as being inaccurate. It was said, however, that in the passage at pages 10-11 the jury might have been confused because the trial judge, in referring to the appellant's defence of self-defence, had made no reference to the first appellant's extrajudicial statement, referring only to those of two of the co-accused. It was also submitted that the trial judge should, when giving directions on the use of extrajudicial statements, have elaborated as to the content of the first appellant's statement at interview - in particular, on the way, on the basis of that statement, self-defence might arise or might give rise to a reasonable doubt. It was further submitted that the judge's language when describing self-defence had been unfortunate: he had spoken (at page 40) of acquittal on the basis of self-defence "if each of three conditions was satisfied" and (at page 43) of the jury taking the view "that the accused has passed all of these three tests". This tended to suggest that the onus of establishing self-defence was on the accused. The judge had not fairly represented the appellant's position (or that of his trial counsel) in suggesting to the jury that, after the chase, the situation (of the siege of the house) was over and that they might accordingly find it difficult to conclude that the attack on Connelly on the path had been in self-defence. The appellant's position had been that the siege of the house and his reaction to it, including his conduct on the path, had been part of a single ongoing incident. Similar criticism was made of the judge's charge in relation to provocation. While no fault was found with his general directions, he had, in charging the jury, failed to put that plea in the context of the appellant's account of events. In relation to the Crown's contention that the first appellant, and the first appellant alone, had wielded the sword with which the fatal wound was inflicted, Mrs. Stacey accepted that a foundation for that case could be found in the evidence of the child, Zoe Waterstone. Corroboration of that account could be found in the evidence of a witness Stewart Knight (who had spoken to seeing the first appellant at the end of the incident putting a shiny metal object up his sleeve). The only other possible source of evidence implicating the first appellant's use of a sword was that of Richardson, who at one stage in the course of evidence-in-chief had spoken of the first appellant having a sword at the time of the pursuit of and attack upon Connelly. But Richardson had gone back on that account, his final position being that his earlier evidence had been a lie. In these circumstances the Crown could not rely on his earlier testimony and the Advocate depute had not endeavoured to do so. In any event his evidence was so unsatisfactory that the trial judge should have indicated to the jury the difficulties inherent in it. In these circumstances Zoe Waterstone's evidence was of a crucial nature to the Crown's contention that the first appellant was actor in the murderous attack and should have been identified as such by the trial judge, with a direction that, if the jury did not accept that child's evidence, they were not entitled to find that the first appellant had, as actor, used the sword (McIntyre v H.M. Advocate 1981 S.C.C.R. 117).

[12] Mr. Shead for the second appellant submitted that that appellant had been denied a fair trial. The trial had been lengthy and the evidence complicated. In these circumstances there was a greater need for specific directions from the trial judge. A striking example was the trial judge's failure to give any directions to the jury as to how they might approach Richardson's evidence. There was also a serious issue as to whether the assailant who had been present with the first appellant at the final stage of the attack was the second appellant or his co-accused, Mohammed. Counsel appearing for the second appellant at the trial had raised in his address to the jury the possibility that that appellant, if guilty of some form of homicide, was guilty only of culpable homicide. He had also indicated that there were two circumstances in which a verdict of culpable homicide was appropriate - (1) where the quality of the second appellant's conduct was of itself not murderous and (2) where provocation had that effect. Counsel had also questioned what significance (if any) there was, for the purposes of concert, of spots of blood having been found on clothing with which the second appellant was associated. There was no evidence that the blood was that of Connelly; in any event, at best, this would point only to the presence of the second appellant when that blood was shed. All of this was consistent with the second appellant's version of events, as given at his police interview - to the effect that he had struck Connelly on the legs with an implement but had departed leaving the first appellant alone with the victim. The trial judge had given the jury directions on provocation but these directions were seriously flawed: he had directed the jury that they could if they thought fit return a verdict of culpable homicide, when in truth they were in the figured circumstances obliged to do so; he had spoken of provocation "reducing" the crime of murder to that of culpable homicide (cf Drury v H.M. Advocate 2001 SCCR 583, per Lord Justice General Rodger at paragraphs [17] - [18]); he had stated that that reduction would take place "if [the jury were] satisfied that the tests of provocation have been passed", suggestive of there being an onus on the accused in that respect (cf Clark v H.M. Advocate [2006] HCJAC 92); he had, while recognising that culpable homicide was there as a possible verdict, wrongly implied that counsel for the second appellant was not seriously insisting in it; in describing the test for provocation he had referred to the "standards of the ordinary person" and of acting in a way which was "totally unreasonable", unhelpful concepts in relation to the proportionality of the response of a provoked person (cf. Gillon v H.M. Advocate 2006 SCCR 561, especially at paragraph [36]). A misdirection, even if apparent only in light of a subsequent decision, could give rise to a miscarriage of justice. Reference was made to Henvey v H.M. Advocate 2005 SCCR 282. The trial judge had failed to give to the jury any direction as to the legal concept of assault. This was critical in the present case, as the second appellant's position was that he should be convicted of assault, and as the jury required to have an understanding of the distinctions among assault, culpable homicide and murder. The Crown's position was that the second appellant should be convicted of murder on the basis of concert. It had identified, on the evidence, two possible concerted attacks - one by four men acting together, the other by two. There was plainly an escalation of violence towards the end of the incident. The second appellant's position was that he had left the scene before Connelly was done to death, but the trial judge had given no direction on disassociation. If the second appellant's account was accepted by the jury, there was at least an issue as to whether he should have been convicted of either form of homicide. As to the second appellant's implication in an assault with a sword, the trial judge had given no direction as to the second appellant's position in law if that weapon had been produced and used unexpectedly. There was clearly a basis in the evidence (the child Zoe Waterstone had accepted that the production and use of the sword had been a surprise to her) on which the jury could hold that the fatal use of the sword was unexpected, so that the second appellant's guilt was not greater than of culpable homicide. Reference was made to McKinnon v H.M. Advocate 2003 SCCR 224.

[13] Mr Shead further submitted that the second appellant had been denied a fair trial because the judge had adopted an inappropriate procedure when a question had arisen about the conduct of a juror in the course of the trial. This issue had been raised at the trial by counsel for the first appellant, that accused having principally observed the conduct in question, but, although counsel for the second appellant had not actively raised a concern then, the effect on the trial also applied to the second appellant. Counsel for the second appellant had done nothing to waive his client's rights. The conduct in question, as reported by the first appellant to his counsel, was that a (female) juror had for some time been scowling not just at the first appellant but also at the other accused. She had at one point (some three days earlier), it was reported, mouthed the words "you four are going down" or words to that effect. The trial judge had clearly been sufficiently concerned to institute an inquiry. What he had done, however, was inadequate having regard to the requirement for the appearance of impartiality. If that requirement was not satisfied, a conviction could not stand (McTeer v H.M. Advocate 2003 S.C.C.R. 282). The procedure was inadequate because the juror had been interviewed by the judge outwith the presence of counsel who had accordingly been denied the opportunity of questioning her. This procedure could be contrasted with that adopted in Crossan v H.M. Advocate 1996 S.C.C.R. 279. As there was no opportunity for the Appeal Court to remedy the procedure, that adopted at the trial had to be robust. This was a matter intrinsic rather than extrinsic to the jury's deliberation and therefore not open to inquiry after a verdict had been returned. Reference was made to Clow v H.M. Advocate 2007 SCCR 201. This jury had not been directed that, if any of its members had concerns about the conduct of any fellow juror, this should be brought to the attention of the judge before a verdict was returned. Such a direction was essential. The absence of such a direction combined with the inadequacy of the procedure had rendered the trial unfair.

[14] Before the Advocate depute addressed us, Mrs Stacey rose to invite the court to take into account in relation to her client Mr Shead's more expansive submissions on provocation and his contention in relation to the difficulty with the juror - although on the latter point the first appellant had no intimated ground of appeal.

[15] The Advocate depute invited the court to have regard to the evidence which had been led at the trial. She provided summaries of the testimony of certain of the witnesses, with occasional references to the transcript of that testimony. Reference was made to certain documentary productions, including photographs, forensic and pathology reports and transcripts of the interviews of the appellants by the police. Reference was also made to the addresses to the jury of the prosecutor and of counsel for the appellants. The Crown's primary case at trial had been that there had been a murderous attack on the victim by the two appellants, the final act of which had been the infliction by the first appellant of the fatal wound with the sword, while the second appellant had held the victim up. It had been an "execution". Apart from the fatal wound, the deceased's body and clothing had been subject to cutting blows. At earlier stages both appellants had concertedly used weapons upon the victim. Both had been involved in the concealment thereafter of weapons and other incriminating materials. Both had subsequently fled from Dundee. Neither appellant had given evidence at the trial. Their positions as to what had happened were what they had respectively described in their police interviews. In each case that had involved relatively minimal violence, in the case of the first appellant at a place well short of where the victim had been killed. Both denied having been involved in any serious violence towards him. In her address to the jury the Advocate depute had raised the matter of provocation but only to demonstrate that it was not on the evidence available to any of the accused. Whatever provocation there might have been, there was no evidential basis on which it could operate in respect of the fatal attack. Among other things there was no evidence that in that context either appellant had lost self-control. Provocation had been otherwise mentioned only in the defence speech for the first appellant. Nor had there been any suggestion that culpable homicide was open because otherwise the mental state of a killer was non-murderous.

[16] As regards the second appellant's grounds of appeal, ground 1 was without substance. While the trial judge might have specifically qualified his direction, there was no basis upon which the jury could be said to have been confused. Moreover, the first appellant had in his statement denied that the second appellant had assaulted the victim, blaming instead the co-accused McHugh. The other co-accused, Mohammed, had not specifically said in his statement what part the second appellant had played. On any view there had been no miscarriage of justice. Reference was made to McGowan v H.M. Advocate 2006 S.C.C.R. 186. As regards ground 2, the second appellant had not at trial denied that he had, to some extent, assaulted the victim. His counsel had invited the jury to convict him of assault. It was also doubtful whether, in a case of murder by assault, the traditional direction on assault was appropriate. Reference was made to Drury v H.M. Advocate 2001 SCCR 583, especially per Lord Mackay of Drumadoon at para.[10] (page 616) and the Lord Justice General at para.[10] (page 588). There had been no miscarriage of justice on this ground. As regards grounds 3 and 4, the judge's directions had in several respects been, if anything, more favourable than they might have been to the second appellant. The evidence that both appellants had been concertedly involved in a ferocious attack with weapons on the deceased was overwhelming. The situation was as figured in McKinnon v H.M. Advocate at para.[27]. As regards ground 4, there was no room for a verdict of culpable homicide against the second appellant on the basis of provocation. No such suggestion had been put by his counsel at the trial. It was clear that a tactical decision had been taken by that experienced counsel. The approach was to minimise the second appellant's involvement by contrasting it with the involvement of the first appellant. It was not for the trial judge to introduce issues not raised by defence counsel (McBrearty v H.M. Advocate 1999 SCCR 122). Reference was also made to Broadley v H.M. Advocate 1991 S.C.C.R. 416. On the evidence culpable homicide, on the basis of the qualitative act of the second appellant (leaving aside any question of provocation), was not open in his case. As regards ground 5, it was accepted that provocation in the context of an assault was ruled by Gillon v H.M. Advocate. Reference was also made to Robertson v H.M. Advocate 1994 S.C.C.R. 589. Although the trial judge had not in his charge referred to proportionality of response as an element in provocation, he had used an objective test by reference to an "ordinary" person. In the circumstances of this case provocation (to the effect of reducing murder to culpable homicide) was not available on the evidence. The judge in leaving it to the jury had been over-generous to the appellants. Insofar as there was a misdirection, it had been favourable to them. As regards ground 6, the trial judge was entitled and bound to adopt a procedure which had regard to the interests of all the accused. The third and fourth accused (Mohammed and McHugh) had firmly disassociated themselves from the position adopted by the first appellant. The judge had adopted a procedure (of interviewing the juror in private) which he had been invited to adopt by counsel for the first appellant - who had raised the matter. After the interview had taken place and the trial judge had in open court intimated the results of it, it had not been suggested that any other course of action be taken. The jury had in the event given extended consideration to their verdicts, which had been discriminating.

[17] With reference to the first appellant's (substituted) grounds of appeal, the trial judge had not, as suggested in the first ground, misrepresented his counsel's position at the trial. On any view there was no room on the evidence for self-defence to operate in respect of the final and fatal attack. The trial judge had been overly generous to the first appellant in suggesting that it might. Likewise, there could in the circumstances of that attack be no room for the operation of provocation. Any suggestion that the first appellant had been provoked into so assaulting the deceased was inconsistent with his position at interview that he took no part in such an assault. There might be some criticism of the "tests" for provocation as formulated by the trial judge, but he had made it plain that a balancing exercise was involved. There had been no miscarriage of justice. As regards ground 3, no special direction was called for to the effect that acceptance of the evidence of the child, Zoe Waterstone, was crucial to a conclusion that the first appellant had been the swordsman. Another witness had seen him concealing an object of that kind immediately before leaving the scene. The first appellant (together with the second appellant) had endeavoured secretly to dispose of incriminating items, including the bloodstained sword. They had then fled from Dundee. The post mortem report was to the effect that the fatal wound could have been caused by that sword. In any event, it was not critical to the Crown's case that the first appellant was the swordsman. Other evidence clearly made him art and part in the murderous attack which led to the death. Although there were difficulties with Zoe Waterstone's testimony, there was much independent support for her account of events. Her evidence had been subject to detailed cross-examination and submission but had found favour with the jury.

[18] Mrs Stacey and Mr Shead both sought leave to respond to the Advocate depute's submissions. They did so on the basis that she was adopting before the Appeal Court positions which she had not adopted at the trial. We granted leave.

[19] Mrs Stacey submitted that at the trial the Advocate depute had in her address to the jury acknowledged that self-defence and provocation were live issues in relation to the killing, albeit she had urged the jury that the Crown had disproved each of them. She had made no submissions to the trial judge that he should rule that these pleas were not open. It would be unfair to allow the Crown at the appeal stage to alter its position to the prejudice of the first appellant, particularly where he had had no notice of this change of front and no opportunity of demonstrating on the evidence that these pleas did properly arise. The evidence to which the Advocate depute had referred the Appeal Court was neither complete nor impartial. The defence speech to the jury was, in part at least, a response to what the Advocate depute had immediately before said to them. The judge in his charge had recognised that self-defence and provocation were live issues. He had directed the jury on these issues, but his directions on provocation were defective. It was his duty, irrespective of the position of parties, to direct the jury on all legal issues which arose on the evidence. Reference was made to R v Coutts [2006] 1 WLR 2154.

[20] Mr Shead adopted Mrs Stacey's supplementary submissions. The Advocate depute had mentioned provocation quite generally without differentiating among the accused. It was clearly an issue as regards the second appellant, albeit his counsel had not specifically referred to it in his address. It was a rare murder trial where provocation was not an issue. It was for the Crown, if seeking a conviction of murder, to negative provocation. The approach in R v Coutts was consistent with Scots practice. In any event, the second appellant's counsel had in his address clearly raised the issue of a mental state, irrespective of provocation, which was short of murderous. He had also raised the issue of conviction simply of assault, even of serious assault. The judge's failure to give a direction on that matter had deprived the second appellant of the possibility of a verdict of culpable homicide. There were also questions on the evidence as to whether the co-accused Mohammed rather than the second appellant had been associated with the final stages of the attack. Culpable homicide was also a possible verdict on the Crown's alternative position that the fatal assault had involved four men. It was not necessarily clear from the jury's verdict that it was based on a two-man assault. The evidence was complicated and open to a number of interpretations. There might be some tension between Lord Rodger's observations in R v Coutts (at para.76) and what he had said as Lord Justice General in McBrearty. The Advocate depute had not said that in principle provocation was not open. It would be unfair, without a full examination of the evidence, to conclude that on the evidence in this case it did not arise in relation to any involvement of the second appellant in the killing.

[21] It is convenient first to address the second appellant's sixth ground of appeal (also advanced by adoption in respect of the first appellant). In our view there is no substance in this ground. The course taken by the trial judge was that which counsel for the first appellant, who at the trial primarily had raised the issue with the court, expressly invited him to take. While that circumstance is not conclusive, what procedure was consistent with a fair trial being a matter for the court, it is a relevant circumstance. It was also plainly the appropriate procedure. The concern which had been raised gave rise to delicate considerations. Fairness to other accused, whose counsel disassociated themselves from the matter raised, required to be taken into account. There was a further risk that, if the concern were pursued more formally, with counsel for the parties appearing when the juror was examined (and possibly cross-examined on behalf of some but not all of the accused), with the complaint found to have no substance, the juror (or the jury generally) might be alienated with greater risk of partiality. The trial judge interviewed the juror in chambers, no doubt in the presence of his clerk. The juror denied the allegations and denied having made up her mind as to the guilt of the accused. During the interview she appeared to the trial judge to be a credible and reasonable person. In the event, the jury deliberated from 10.44 to 16.18 on 10 October and from 10.08 to 14.20 on 11 October and returned discriminating verdicts. In these circumstances there would not to an objective observer, seized of the whole circumstances, have been an appearance of jury bias.

[22] It is convenient next to address the first appellant's first ground of appeal. As elaborated in argument, that came to be a criticism of certain aspects of the judge's charge in relation to the first appellant's special defence of self-defence. We reject the submission that the trial judge left the jury with the impression that it was for the then accused to establish that defence. When this special defence was first mentioned in the course of the charge (at pages 10-11) the trial judge expressly directed the jury that it was for the Crown to disprove it and not for the accused to prove it. That was given as an example of the more general direction (given more than once) that an accused did not require to prove anything. In this trial, in which the evidence was in some respects complicated or conflicting and where accordingly a range of factual conclusions was open to the jury, the judge wisely did not enter upon a detailed analysis of the evidence. The statements made by the first appellant at police interview were, as were those by the other accused, plainly before the jury. The first appellant's counsel, in her address, referred frequently to their terms. There was no obligation on the trial judge to rehearse them, or even to summarise them, so as to indicate in what circumstances - on the assumption that the jury accepted that what was there said was true - self-defence could or did arise. As to the alleged misrepresentation in the charge of the basis upon which counsel had urged self-defence, the trial judge, having noted that the attack on the house had finished some time before the fatal attack, added:

[23] As to the first appellant's third ground of appeal (as argued, that the trial judge should have given a special direction that acceptance of the evidence of Zoe Waterstone was essential before the jury could conclude that the first appellant had wielded the sword), we are not persuaded that such a direction was necessary, or indeed appropriate. There are some circumstances in which it is appropriate and common to give a direction that acceptance of the evidence of one witness is a necessary precondition to a finding of guilt of a crime. But this was not such a situation. That child did not stand alone in giving testimony that the first appellant had at the relevant time a weapon in the nature of a sword or similar instrument. The witness Knight testified to seeing the first appellant as he walked away from the scene putting "a very shiny object" up his right sleeve. He later in evidence said that it was metal and "looked to be a triangular kind of shape to me". The sword (Label Production No.1) was among the weapons which the first appellant, along with the second appellant, shortly thereafter endeavoured to secrete in the home of a neighbour. In these circumstances unqualified acceptance of the evidence of the child was not a pre-requisite to a conclusion that it was the first appellant who, using the sword, had struck the fatal blow. We reject this ground of appeal. It is convenient to leave to a later chapter in this opinion the first appellant's second ground of appeal (criticism of the direction on provocation).

[24] At this point we notice the second appellant's first ground of appeal. This ground (which was not addressed by Mr Shead in his oral submission) was that the direction given by the trial judge about the use to which evidence about the accused's interviews could be put was inadequate and confusing - in particular, that he had failed to make plain that these extrajudicial statements could not be used to incriminate co-accused. We reject this ground of appeal. The trial judge opened his discussion of the use of extrajudicial statements with a clear direction that the jury could not take them into account insofar as they incriminated other accused. His subsequent directions as to the use of such statements were clearly subject to that direction.

[25] Mr Shead intimated to the court that he was not insisting on the second appellant's seventh ground of appeal.

[26] Mr Shead stated that the second appellant's second, third and fourth grounds of appeal were closely related. They were complaints of absences of direction - in particular a failure to give any direction as to the meaning in law of assault, a failure to give adequate directions on the law of concert (with particular reference to the possibility that the second appellant, while party to an unlawful killing, was not party to murder) and a failure to direct the jury that, irrespective of provocation, it would be open to the jury to return against the second appellant a verdict of culpable homicide.

[27] The trial judge did not give to the jury a direction defining assault. This appears, from the judge's report, to have been an oversight. There have been some judicial observations to the effect that giving the standard definition of assault in circumstances where that expression occurs in a murder charge may introduce an unnecessary complication (Drury v H.M. Advocate per Lord Mackay of Drumadon page 616 (para.[10]) and per Lord Justice General Rodger at page 588 (para.[10]). These dicta do not make it clear in what circumstances the conventional direction, which includes a definition of "assault", may properly be omitted. The definition would appear to be appropriate in circumstances where it would on the evidence be open to the jury to delete all reference to homicide but where they might be minded to convict of assault. In such circumstances, properly to address that matter, they would require to know what, in law, was the meaning of assault. As we shall describe, counsel for the second appellant invited the jury to return against his client a verdict of assault. In these circumstances the omission to give a definition of that expression was, in our view, a misdirection. Whether it resulted in a miscarriage of justice is another matter. To that we shall return.

[28] The third and fourth grounds of appeal can be treated together. It has been clear at least since the decision in McKinnon v H.M. Advocate (decided after the trial in this case) that an individual who takes part in an attack which results in the conviction of another of murder may himself be guilty of the lesser crime of culpable homicide. Whether he is guilty of the more serious crime will depend on whether it is proved that he was participant in a murderous common criminal purpose; if it is not so proved but it is proved that he was party to an assault resulting in death, the correct verdict will be one of culpable homicide. In the present case it was open to the jury to convict the second appellant of murder, even if they found that he did not himself use the sword, nor had prior knowledge of its likely use; there was evidence that other weapons, both blunt (a baseball bat) and sharp (a pruning hook), were used on the deceased. One witness spoke to seeing one of these weapons, another witness to the other weapon, in the hands of the second appellant. On the other hand, a conclusion that the second appellant was participant in murder was not inevitable. While, apart from his use of one or other of these weapons, there was testimony (from Zoe Waterstone) that he assisted in the administration of the fatal blow (by holding the victim up while the first appellant struck him), it was open to the jury to reject the evidence pointing to murderous participation by the second appellant, yet to hold that he had been participant in an unlawful killing with a resultant verdict of culpable homicide. That was an option which the trial judge should, in our opinion, have left open to the jury in the case of the second appellant, whether or not his counsel specifically invited such a disposal. His omission to do so was a misdirection.

[29] It may be noted at this point, though no counsel drew our attention to it, that in directing the jury as to the verdicts available to them the trial judge made no reference to a verdict of culpable homicide. He told them that there were three verdicts open to them: guilty, not guilty and not proven. In referring to the jury's power of deletion he said:

[30] It is appropriate now to address the issue of provocation. In opening his directions on this topic the trial judge said that "provocation when it is pled in a murder case can have the effect, if the jury see fit, of reducing the crime of murder to that of culpable homicide". That statement was criticised in two respects: first that it suggested that the effect of provocation, if made out in a murder case, was to confer a discretion on the jury to return a verdict of culpable homicide rather than obliging them to do and, second, that to speak of provocation "reducing" the crime from murder to culpable homicide was inaccurate. As to the first criticism, it is important to notice that the judge is there speaking of provocation being pled in a murder case, not where it is made out in such a case; it was open to the jury, depending on their view of the evidence, to accept or reject the plea. In immediately succeeding passages (at page 49, lines 2 and 23) the judge makes it plain that the effect of provocation, if made out, is to render a verdict of culpable homicide appropriate. Although the potestative "could" is again used at page 50 line 5, we are not persuaded that the jury were in this respect materially misdirected. As to the second criticism, the trial judge in the passage cited and in other passages in the same context speaks of the crime being "reduced" to culpable homicide. From a lawyer's point of view this may not be strictly accurate. It has been observed judicially that evidence relating to provocation is simply one of the factors which the jury should take into account in performing their general task of determining the accused's state of mind at the time when he killed his victim (Drury v H.M. Advocate, per Lord Justice General Rodger at para.[17]). The Lord Justice General notes that the terminology of "reducing murder to culpable homicide" is frequently encountered, as it is. While Lord Cameron of Lochbroom appears to have made an observation on this matter in the course of the hearing of the appeal, this criticism is not repeated in his opinion, nor in that of any of the other members of the court. We are not persuaded that this technical inaccuracy amounted, in the circumstances of this case, to a material misdirection.

[31] More substantial criticisms were, however, made of the judge's directions on provocation. At page 50 lines 19-25 he said that before the jury could give effect to the plea of provocation there were "three things" on which they "would have to be satisfied" on the evidence. These things, he added, "I am now going to tell you about". Perusal of the immediately following passages reveals that the trial judge gave directions (1) that the provocation must be in response to an attack on the accused and (2) that the accused must have lost his temper and self-control as an immediate result of the provocation, contrasting the latter with an act of revenge. Immediately thereafter he refers to "these three tests that I have just explained to you". At no point does he give to the jury a direction on the need for the response to a physical assault to be reasonably proportionate - a constituent element in provocation in response to violence (Gillon v H.M. Advocate, affirming a long line of earlier authority). On the other hand, he goes on to direct the jury to address "these three tests" by reference to the standards "of the ordinary person" - a concept which appears to come from consideration of provocation as a response to sexual infidelity (Drury v H.M. Advocate). On one view the misdirection by omission of any reference to reasonable proportionality might be considered to be in favour of an accused - an unreasonably disproportionate response might on this direction result in a verdict of culpable homicide. But combined with other factors we are of opinion that the misdirection was material. These other factors are, first, that in the passage concerned with provocation the language used by the trial judge is open to the interpretation that it was for the accused to prove provocation. In more than one passage he referred to the need that the jury "be satisfied" about the elements of provocation. Although he had earlier given general directions about there being no need for an accused to prove anything, a reminder of that proposition in the context of provocation would have been advisable. Secondly, and more importantly, the judge in the immediately following paragraphs goes on to direct the jury as to the verdicts open to them. At no point does he instruct them as to the form of verdict they should return if they were of the view that an accused was guilty of culpable homicide.

[32] It remains to consider whether, as a result of that or any other material misdirection, either of the appellants has suffered a miscarriage of justice. That involves consideration of the basis on which it can reasonably and justly be concluded that the jury reached their verdicts. As we have said, the Crown presented its case to the jury on two possible versions of events - primarily, that at the stage when the fatal blow was struck two men (namely, the appellants) were engaged upon the attack and, alternatively, that four men were then so engaged. The jury clearly accepted the primary version. In our view the jury's verdict can also be interpreted to the effect that the principal actor in the fatal attack with the sword was the first appellant and that the second appellant was guilty art and part in the murderous attack. There was no evidence that the second appellant had used the sword; there was ample evidence that the first appellant had.

[33] On that interpretation of the verdicts it was inevitable that the jury, if properly directed, would on their view of the evidence, have convicted the first appellant of murder. The use of the sword in the circumstances was on any view murderous. Whether or not the first appellant was responding to an attack upon him or his family and whether or not his response was immediate and involved a loss of control on his part, its use could on no reasonable view be said to be proportionate; nor could the mens rea of the swordsman on any other basis be regarded as other than murderous. In these circumstances the first appellant has suffered no miscarriage of justice and his appeal must be, and is, refused.

[34] The position of the second appellant is different. There was no evidence that he used the sword. There was some evidence that the sword appeared suddenly. Although on the evidence the jury would, having regard among other things to the evidence of the use by the second appellant of another weapon, have been entitled to return a verdict of murder against him, it was not inevitable that they would do so. They could have taken the view that his mens rea, on whatever basis, was that of a person guilty of culpable homicide. For the reasons we have given the second appellant was denied the opportunity of the jury, properly instructed, returning such a verdict. In these circumstances we are satisfied that the second appellant suffered a miscarriage of justice.

[35] We shall, in these circumstances, allow the appeal of the second appellant against conviction and quash that conviction. We would be minded to dispose of his appeal by substituting in his case a verdict of culpable homicide on charge (2) - on the view of the evidence taken by the jury he was clearly guilty of an unlawful killing. However, the Advocate depute did not at the hearing invite us to make such a substitution in the event that we were to reach the view on miscarriage which we have. The Crown may wish to invite us to take another course. We shall accordingly continue the second appellant's appeal for a short time to enable the Crown, having considered the terms of this opinion, to address us as to the appropriate disposal of the second appellant's appeal against conviction.