"(3) on 12 or 13 March 2006 at the house at 11 Mull Court, Broomlands, Irvine, you David Joseph Martin did assault Gilbert Grierson, formerly residing at 11 Mull Court, Broomlands, Irvine, now deceased, and did repeatedly strike him on the head and body with knives, scissors, a frying pan, a bottle and other instruments, all to his severe injury; and thereafter you did set fire to said house, lock said Gilbert Grierson therein causing further injury to him and you did murder him."

"(7) on 16 June 2006 at H.M. Prison, Kilmarnock, Mauchlin Road, Kilmarnock you David Joseph Martin and Andrew John Kiltie did assault Michael Peter Cameron, then an inmate there, now deceased, and did strike him with a belt, seize him by the body, punch him on the head, pull him to the floor and while he was unconscious, repeatedly kick him, jump and stamp on his head and body, repeatedly strike him on the head and body with a chair, pour boiling water on his head and body and strike him with a kettle; and you David Joseph Martin did further assault said Michael Cameron and did stamp on his head, whereby said Michael Cameron was so severely injured that he died from his injuries at Crosshouse Hospital, Kilmarnock on 17 June 2006 and you David Joseph Martin and Andrew John Kiltie did murder him."

"(i) The Minuter submits that the charges against him on the indictment should be the subject of separation of charges to be conducted as separate trials. Specifically the charges (1), (2), (3), (4) and (5) should be the subject of separation and the subject of a separate trial from the remaining charges on the indictment."

The basis of the application was described in this way:

"(i) Charges (6) to (10) inclusive relate to allegations of criminal conduct while the Minuter was remanded in custody at Kilmarnock Prison until liberated in due course of law in relation to the aforementioned charges (1) to (5) inclusive.

(ii) The charges do not form a course of conduct. The circumstances of each set of charges are quite distinct and the defences to each set of charges are equally distinct.

(iii) There is no evidential connection between the aforementioned sets of charges.

(iv) The charges are not connected in time, place or circumstance. The witnesses to fact for the prosecution in relation to each set of charges are separate and distinct, with no inter-relation between them.

(v) Whilst it would be an inevitable consequence of charges (6) to (10) inclusive that the jury would learn of the incarceration of the Minuter, that would not be necessary in relation to charges (1) to (5) inclusive and may otherwise be inadmissible on grounds of prejudice to the Minuter's rights to a fair trial.

(vi) The Minuter's defence of charges (6) to (10) inclusive will involve an examination of the management of him by the prison managers at Kilmarnock Prison. It will involve an examination of the information on the Minuter held by prison managers and will likely, if not inevitably, disclose their knowledge of the Minuter by reason of previous incarceration at the prison and elsewhere.

(vii) While disclosure of the background history of the matter is a necessary consequence of the charges arising from incident at Kilmarnock Prison and the defence thereto, it is not the case in relation to charges (1) to (5) inclusive.

(viii) Disclosure of the relevant history and circumstances of the Minuter in relation to charges (6) to (10) inclusive would materially prejudice him in his trial on charges (1) to (5) inclusive.

(ix) There is a demonstrable and material risk of real prejudice to the Minuter if the two sets of charges, (1) to (5) inclusive and (6) to (10) inclusive, remain on the same indictment and before the same jury and the principles of natural justice will be transgressed in such a manner as to constitute a miscarriage of justice."

"For centuries it has been the practice to try all outstanding charges against an accused on a single indictment at the same time. It is pointed out in Hume, volume ii, page 172:

'This is allowed not only for the sake of doing justice as expeditiously, and with as little expense and trouble as may be to the public, but also (provided it is kept within certain bounds) for the advantage of the pannel; that he may be relieved of the long confinement, and of the anxiety and distress, which would attend a series of successive trials'.

It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of charges and, let it be said at once, it simply will not do for an accused to contend, as was done in this case, that such a material risk of real prejudice arises merely because the charges in an indictment are of difference kinds of crime committed at different times in difference places and circumstances. If that proposition were to be accepted it would have to be accepted also that several charges of crimes of the same kind, e.g., theft by housebreaking committed at different times and places and in different circumstances, must carry an event greater risk of prejudice and should never be tried together. Experience, however, shows that under proper directions juries are well able to consider each charge in an indictment separately and to demonstrate by their verdicts that they have done so."

With that passage we respectfully agree. We understand from it that the stated criterion for separation, the existence of a material risk of real prejudice to the accused in the accumulation of charges, is intended to be that which is to be applied by the judge of first instance, before whom the issue is brought. Since the making of a decision as to separation of charges is one peculiarly within the discretion of the judge of first instance, in our view, the matter must inevitably be approached differently, in the event of its coming before an appeal court. There are two ways in which that may happen. If separation has been sought and refused at a preliminary diet, provided leave to appeal is granted, the issue may then, as has happened here, be argued before the appeal court prior to trial. Alternatively, if a motion for separation of changes is refused, the accused proceeds to trial and is convicted, no doubt the issue of separation may be raised again in an appeal under section 106 of the 1995 Act. In that latter situation, the sole criterion to be applied will be whether there has been a miscarriage of justice, as required by section 106(3) of that Act. It was by that latter route that an issue of separation of charges came before the appeal court in Davidson and another v Her Majesty's Advocate, although under earlier legislation. At page 376 of the report in that case it was said in the opinion of the court:

"It has been said that an Appeal Court will interfere only if oppression is demonstrated. It is perhaps more accurate, however, to say that an appeal court will not interfere unless there is shown to have taken place a palpable failure of justice."

Having regard to the terms of section 106(3) of the 1995 Act, under which appeals against conviction must now be considered, we would understand that expression to be equivalent to the modern criterion of a miscarriage of justice.

"Miss Scott maintained that it was clear from that passage in the sheriff's report that she had applied the wrong test because the test which she had purposed to apply was the test which could only arise at a later stage when the appeal court was considering whether it was entitled to interfere with the sheriff's exercise of discretion. She drew attention to Reid v Her Majesty's Advocate. In that case at page 155 the Lord Justice General, in giving the opinion of the court said

'The risk of prejudice to the appellant is neither so obvious nor so grave that the trial judge's refusal to grant the motion was a palpable failure of justice'.

Lower down that page he added:

'It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of charges ...'.

In that latter passage the Lord Justice General was explaining what the test was at the stage of the matter being before the trial judge. We consider that there is force in that submission made by Miss Scott and it does accordingly appear that, in reaching her final conclusion on the motion made to her, the sheriff approached the matter in the wrong way by applying the test which would fall to be applied by the appellate court rather than the test which fell to be applied at the stage when the application was first made. That being so, the matter is at large for this court and the question must be whether there is a material risk of real prejudice to the appellant if the charges are tried together."

"It is plain therefore that the sheriff proceeded to his decision in part upon a basis which the learned Advocate depute does not now seek to support, and that there is no question of the Crown having a legitimate interest in this respect in charging these two crimes together.

Against that background we accept the submission which was made to us by Mrs Stacey on behalf of the appellant that it was open to us to examine the matter afresh, having regard to what is alleged in these two charges and the nature of the defence to which Mrs Stacey referred. Her submission, based on Reid, was that there was here a material risk of real prejudice to the appellant due to the presence of these two charges on the same indictment."

It is quite plain from this passage that, having concluded that the sheriff had misdirected himself in law, the appeal court regarded the matter of separation of charges as at large for it and that it was appropriate to consider the issues under reference to the criterion of a material risk of real prejudice.

"There was no dispute that the Court has a discretion in the matter and that the test to be applied was whether there was a material risk of real prejudice to the accused if the charges were tried together. I did not consider that the case of Her Majesty's Advocate v Granger which dealt with separation of trials, was of any particular assistance. The other cases cited illustrate some of the circumstances in which the Court has considered the exercise of discretion. Each case however must be considered on its merits and in the context of the particular circumstances. As the Lord Justice General (Lord Clyde) stated in His Majesty's Advocate v Bickerstaff 1926 J.C. 65 at page 75, 'I think it would be extremely difficult - and I have no intention of attempting the task - to define the circumstances in which the combination of more charges than one on the same indictment is legitimate and fair to the accused'. In that case he came to the conclusion that the separate crimes were so closely connected in time, circumstance and character as to make it fair and legitimate to try them together. He also recognised that in such circumstances there may arise in the course of the trial questions of more or less difficulty and that the judge will require to guide and direct the jury with regard to what evidence they are entitled to consider in relation to various parts of the case they have to decide."

"prima facie it might be prejudicial to the accused in relation to the charges arising out of the events in March 2006, and in particular to charge (3), to hear the evidence which the solicitor advocate proposes to lead in relation to charge (7)."

She continues:

"The defence is not that the first accused is a man of violent tendencies and history. The defence is that the first accused in certain specific types of situation (not applicable to the charges arising out of events in March 2006) has, because of his background and history, demonstrated on some occasions an inability to control his behaviour. I am satisfied that the presiding judge will be able adequately to instruct the jury in such a way as to minimise any potential prejudice to the first accused. In all the circumstances, I am not prepared to exercise my discretion to grant the motion of behalf of the first accused for a separation of charges."