"(1) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did assault John Diver or Divers, residing there, repeatedly punch, kick and stamp on his head and body, headbutt him, knock him to the ground and repeatedly strike him on the head and body with a piece of wood, a hammer and an ashtray or similar instruments and you did murder him;

and

(2) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did steal a jacket, a suit, a blanket, a jewellery box and a quantity of jewellery".

The circumstances of the case

"The evidence disclosed that the late John Diver, aged 60, was found dead in his flat, 1/4, 54 Norfolk Court, Glasgow in the late morning of 23 August 2005. He was lying on his back, fully clothed but bare footed. His face was covered in blood. The flat was in a state of disarray. As was indicated in the post-mortem report, Crown production 14, spoken to by Dr Marjorie Black, the deceased had suffered injury, including fractures to the right third and left sixth and seventh ribs, eight lacerations to the head with abraided margins and areas of bruising consistent with being hit by a blunt implement or having been kicked and punched, and a penetrating wound to the right leg which had tracked into the muscles of the thigh. There was extensive bruising on the back of both hands, consistent with defensive injuries. Sectioning of the brain showed evidence of raised intra-cranial pressure consistent with sub-dural haemorrhage. It was Dr Black's opinion that the cause of death had been raised intra‑cranial pressure by reason of sub-dural haemorrhage, the haemorrhage having occurred either by reason of the deceased's head having been hit off something hard (for example, by reason of the deceased having been kicked while lying on the floor) or his head having been hit by something hard. Any blunt weapon or a foot could have caused the injuries. Mr Findlay [counsel for the co-accused Carslaw] elicited in cross-examination that the table leg, Crown Label 31 might, if used as a weapon, have caused the lacerations and brain injury found on the deceased. The post-mortem changes to the body of the deceased indicated that Mr Diver had died several days prior to 23 August 2005. It was Dr Black's evidence that the deceased might have been able to survive his injuries for several hours. During that period he might have been able to move. The experience of such cases is very variable.

The body of the deceased was found to be infested with blow fly maggots. Evidence was led from an entomologist, Crown witness 46, Professor Murray Anderson, with a view to determining the time of death by reference to the state of development of the maggots. Professor Anderson's report is Crown production 41. That report includes an estimate by Professor Anderson indicating that the deceased had died between 13 and 15 August 2004, but, in the course of his evidence, the witness emphasised that the technique of estimating time of death by reference to the state and maturity was very imprecise. The tower block at 54 Norfolk Court and, indeed, the neighbouring tower block at 17 Norfolk Court were subject to CCTV surveillance. There was no dispute that CCTV film (Crown production 36) showed the deceased as having been alive at 1804 hours on 16 August 2004. Having regard to that information and the fact that the speed at which maggots develop is a function of ambient temperature which, in this case, had to be assumed, Professor Anderson put forward the period between 17 and 20 August 2004 as what he described as his 'confidence limits' of the period within which the deceased died. Professor Anderson could, in any event, only offer a range of possible times of death. Any attempt to achieve precision was futile.

As I have previously indicated, the deceased's time of death was of importance. CCTV film showed both the appellant and Mr Carslaw entering 54 Norfolk Court at 1145 hours on 16 August 2004 (video still - Crown production 30). The appellant left 54 Norfolk Court about 1202 hours and returned some 10 minutes later, having purchased vodka (video stills - Crown productions 31 and 32). There was no dispute but that the appellant and [the co-accused] Mr Carslaw remained in the deceased's flat at 1/4, 54 Norfolk Court, until about 0637 hours on 17 August 2004 when they left together, carrying bags containing items from the deceased's flat (video stills - Crown productions 37-40). It was the Crown position that by that time the deceased had been assaulted by both accused and had received the injuries which had or would prove fatal. That the deceased had not left his flat after returning there early on the evening of 16 August but, rather, that he had sustained fatal injury and died there early in the morning of 17 August got support from the evidence of his neighbour, Crown witness 4, Isabella Milligan; Crown witness 6, Michael Fox; and Crown witness 2, Helen McLuckie, a support worker who had gone to visit Mr Diver on 23 August 2004, together with Crown witness 1, Peter Masterson. On police interview, both the appellant and Mr Carslaw had separately confirmed that they had required to break out of the deceased's flat because the door was locked and they did not have the key and, in doing so, had damaged the door. There was evidence that the deceased was security conscious and that he never opened the windows of his flat. Mrs Milligan gave evidence to finding the door of the deceased's flat slightly open at about 0625 hours on 17 August 2004. This was not very long after she had heard three rapid bangs, a pause and then two further rapid bangs coming from the deceased's flat. Mrs Milligan told the concierge, Mr Fox, about the door of the deceased's flat being open. At about midday on 17 August, Mr Fox found the door still to be open and damaged. He shouted to Mr Diver but received nor [sic - 'no'] reply. He shut the door. On 17 August, Mrs Milligan noticed that the sitting room window of the deceased's flat was open. On 23 August , Miss McLuckie noticed the same window as being open. On no occasion on or subsequent to 17 August did Mrs Milligan see the deceased.

Evidence to a rather different effect was given by the witnesses led on behalf of the appellant, Gillian Grant and Rajnina Kelly. Both knew the deceased by reason of being employees in mental health organisations. It was the evidence of Miss Grant that the last time she saw the deceased was between 1030 and 1100 hours on 17 August 2004 close to the Saltmarket in Glasgow. She saw him from a distance of about 15 yards. She could not say one way or the other as to whether he appeared to be injured. Miss Kelly said that she had seen the deceased on 17 August 2004 at about 0915 or 0920 hours in Turnbull Street. They had had a conversation. She did not remember him appearing to be injured. There was no challenge to the credibility of Miss Grant or Miss Kelly. The position of the Advocate Depute was that they were entirely honest witnesses but entirely wrong in so far as their accounts of meeting the deceased on 17 August 2004.

As I have previously indicated, the CCTV film showed the appellant and Mr Carslaw leaving 54 Norfolk Court together at about 0637 hours on 17 August 2004, walking together to 17 Norfolk Court and, shortly thereafter, leaving 17 Norfolk Court. When she left 54 Norfolk Court the appellant was wearing a fleece top which Mr Carslaw had worn when he had initially entered 54 Norfolk Court. That top was subsequently recovered and found to have small traces of the deceased's blood on it. Mr Carslaw left 54 Norfolk Court wearing a brown leather jacket which he had not worn when he had entered 54 Norfolk Court. When the couple left 17 Norfolk Court they were seen to have changed their clothes. On police interview the appellant admitted that on returning to l7 Norfolk Court in the early morning of 17 August she had washed the denims which she had worn and the denims that Mr Carslaw had worn when they had been in the deceased's flat on 16 August and earlier on 17 August. A jewellery box which was seized from the appellant's bedside table at 18/6, 17 Norfolk Court, Crown Label 8, was found to be stained with the deceased's blood.

When the appellant was spoken to by police officers early on the evening of 31 August 2004 she initially gave a false name and a false date of birth. Shortly thereafter she acknowledged to police officers that she knew that their interest was 'about a murder' and 'about old John'. On police interview between 2240 hours on 31 August and 0058 hours on 1 September 2004 (transcript - Crown production 50) she acknowledged that she was in the flat when the deceased was assaulted. She said that Mr Carswell 'did stick the heed on 'im'. At a later stage in the interview the appellant conceded that she had been telling 'a half truth half lies'. She then gave an account of Mr Carswell having 'jumped a' o'er him ...stamping on his face' with the result that there came to be a 'fair bit' of blood on the deceased's face. She did not admit to having assaulted the deceased herself.

A further statement by the appellant against interest was spoken to by Crown witness 10, James Gillespie. He said he had been present in the flat at 18/6, 17 Norfolk Court, when there was a conversation between the appellant and Mr Carslaw. The appellant had referred to 'fighting with a guy'. She said that the 'guy had put his hand on her chest'. She had 'hit him on the leg with the table leg ...or somewhere'. For Mr Carslaw's part, according to James Gillespie, in the course of the conversation Mr Carslaw had said that he had 'punched the guy ... hit the guy'. He had said 'I have got myself into a bit of trouble - I was fighting with somebody'. Mr Gillespie did not identify the date of this conversation but it could be taken to have occurred before 28 August 2004 when he had given a statement to the police."

At this point in his report the trial judge summarises the evidence of the late Ms O'Brian, as noted by the police officer. We shall revert to that evidence later. Having summarised that hearsay evidence the trial judge then continues:

"As far as James Carslaw was concerned, there was evidence that shortly after 17 August he moved from Flat 18/6, 17 Norfolk Court, where he had been living with Miss Harkins and had gone to live at 25 Soutra Place. On 31 August 2004 he had run away from police officers who had attempted to speak to him. When interviewed by the police on 1 September 2004 (transcript - Crown production 48) he admitted having been in the deceased's flat, together with the appellant on the day before he learned that the deceased had died. He admitted to pushing the deceased when he awoke to find his boxer shorts appeared to have been pulled down. He did not admit to assaulting the deceased beyond that. He spoke to the appellant having hit the deceased on the knee with a table leg. He could not account for the deceased's extensive injuries."

The hearsay evidence

"For the past seven years I have been a heroin addict, and still am. I am not registered with any doctor. I do not have my own house. I am currently using one or two tenner bags of heroin a day, I'm smoking it now as opposed to injecting it and overall I'm in much better nick than I was when I was injecting up to 7 bags a day. I have smoked one tenner bag of heroin today, I am absolutely fine, I know everything you are saying and I'm fine, I'm no rattling."

There then follows a lengthy passage canvassing various matters respecting the deceased and Ms O'Brian's social interaction with him. The inconsistency with other objective evidence of what she was noted as saying respecting these matters was in due course to provide counsel for the appellant at her trial with material to criticise the reliability of the deceased witness, but we do not think it necessary to set out these inconsistencies in detail. In the subsequent course of that statement, as so noted, the deceased witness refers to a meeting with the appellant, placed at about 10.15 am on Wednesday 19 August 2004. We incorporate what appears to be the relevant portion of the statement, and to which we were referred by counsel, as follows: -

"As Ah walked down the lane towards Argyle Street, Ah heard a shout "Ann", I looked to ma right and "Vodka" Sharon was sitting on a step near the multi storey car park. She's called "Vodka" Sharon because she drinks lots of vodka. I think her real name is Sharon Harkins or Harkness. She stays in the Gorbals, block 17, Norfolk Court, Floor 17, house number 2, it's her own house. I've never been in her house but Ah know all this from talking to her. She's about forty odd but hangs about wae the young mob, I don't really hang about wae her but she's always been part of the toon Centre drinking mob, that's how I know her. She's an alcoholic and as such gets into some states. She was on her own, she had a drink in her but wasn't drunk. She tapped me for a fag. As she's asked me for a cig, she's asked me if I've seen "Old John". I said to her "NO, I'VE NO BEEN NEAR" then Ah said "I'LL PROBABLY SEE HIM LATER". I gave her a cigarette and she said "I WAS UP IN HIS HOOSE DRINKING, HE WAS ASKING FOR YOU". I said to her as Ah parted company, "IF YOU SEE OLD JOHN AT THE CLYDESIDE" (the Clyde walkway on Clyde Street) TELL HIM I'LL SEE HIM LATER". Old John frequents the Clydeside if he is looking for me, and I know "Vodka Sharon" goes there every day without fail, it's where all the alkies hang about. As I've said this to her and started to walk away, she was still sitting down and shouted "WAIT TILL I TELL YOU THIS". I turned round and Ah said to her "SHARON, I'M GOING TAE GET SQUARED UP, I'M RATTLING, YOU CAN TELL ME AFTER". Then she said "BUT IT'S ABOUT "OLD JOHN",

So I stopped and Ah walked back to her. Ah asked her what she was talking about. She said "OLD JOHN TRIED TO TOUCH ME UP". "I WAS WAKING UP OOT A DRUNKEN SLEEP IN HIS HOOSE". I told her I didnae believe her about that "NO, OLD JOHN DOING THAT TO YOU", because she's been in Old John's a few times. She said "ANN I'M TELLING YOU THE TRUTH, I THOUGHT IT WAS MA BOYFRIEND".

As she was telling me this, I'm thinking tae maself "no way did this happen" and I'm rattlin and want tae get away fae her, so I say "LOOK SHARON SORT THIS OOT YERSEL, I'LL SEE OLD JOHN LATER". She said "YOU MIGHT NO BE ABLE TAE SEE OLD JOHN LATER, THAT'S WHAT I'M TRYING TO TELL YE". So I doubled back and Ah sat doon. Ah asked her what she was talking about, I said "WHAT DO YOU MEAN AH MIGHT NO BE ABLE TO SEE HIM". She said "ME AND MA BOYFRIEND DONE JOHN IN". I said "WHAT DO YOU MEAN DONE HIM IN", she said "WELL PUT IT THIS WAY, HE WISNAE MOVIN WHEN HE LEFT THE HOOSE".

I said "START FROM THE BEGINNING SHARON BECAUSE RIGHT NOO MA HEID IS UP MA ARSE".

She said to me "ME AND 'J' WERE IN JOHN'S DRINKING ON MONDAY, I MUST HAVE FELL ASLEEP ON THE COUCH AND I WAS WAKENING UP OOT A DRUNKEN SLEEP AND HAD A HAND DOON MA TROUSERS, I THOUGHT IT WAS MA BOYFRIEND'S, AS I CAME TO I STARTED TO RAISE MA VOICE AS AH CAME TO AND REALISED MY BOYFRIEND WAS SLEEPING ON THE LIVING ROOM CHAIR NEAR THE LIVING ROOM DOOR, AS I WAS SHOUTING 'J'S' WOKE UP AND I TOLD 'J' I WOKE UP WAE 'OLD JOHN'S' HAND DOON MA TROUSERS". She said the next thing 'J's' jumped on Old John. She said "AS YOU KNOW THAT'S MY NEW BOYFRIEND 'J'",

Ah said to her then, "HAVE YOU SEEN 'OLD JOHN' SINCE MONDAY", she said "NO I DON'T WANT TO GO NEAR THE HOOSE, HIS WINDAE IS STILL WIDE OPEN AND AH HAD TAE BURST THE LOCK ON HIS DOOR". She then drifted on to her and this 'J' who she said was just a young boy, eighteen, and how they met, I presume down the Clydeside. I stopped her rambling on and told her to get back on to "Old John". She said "ANN IT ALL SORTA HAPPENED IN A BIT OF A BLUR". She said "AS I WAS SHOUTING AND 'J' WOKE UP , I ENDED UP WAE A TABLE LEG IN MA HAND, FUCK KNOWS WHERE THE TABLE LEG CAME FAE".

I don't know where it would have come from either because "Old John's big table in he living room has a wooden top with iron legs, no legs you could unscrew or break off.

There is a smaller table in a next, like smaller versions of the big table but they have got iron legs as well.

She then said "I WENT TAE HIT JOHN WAE THE TABLE LEG, I MISSED JOHN AND HIT'J'".

I said "ARE YOU SURE NAEBODY HAS SEEN 'OLD JOHN' SINCE MONDAY".

She said "AYE".

She then said "AH KNOW HIS WINDAE IS STILL WIDE TAE THE WORLD".

Ah knew "Old John" didnae like his windaes open. She then kept repeating "I THOUGHT IT WAS 'OLD JOHN'S' HAND DOWN MA TROUSERS ANN".

She said "WE CAN'T GO TO THE POLICE BECAUSE OUR BLOOD IS IN THE HOUSE AS WELL AS OLD JOHN'S"

I jumped up off the step, I was rattling and my heid was up ma arse, but I said "HOW BAD HAVE YOUSE HURT OLD JOHN". She said "I DON'T KNOW HOW BAD IT IS, BUT WE HAD TAE FORCE OUR WAY OOT THE HOOSE".

I said "WHY DID YOU FORCE YOUR WAY OUT, WHY DID YOU NOT BUZZ THE CONCIERGE". She said "WE COULDNAE BUZZ THE CONCIERGE BECAUSE OF ALL THE BLOOD". That's when I realised she was telling the truth."

Some of the matters mentioned in that passage are thereafter repeated.

The trial judge's directions

"What I'm about to go on to say relates specifically to what is said to have been, or the evidence that Sergeant (inaudible) said about what Ann O'Brian is said to have said to him on or about the 24^th August and then again on the 2^nd September 2004. Now, as you have heard, Ann O'Brian is now deceased and because she is deceased, that allows an exception to the general rule against hearsay. Of course, it means that you have not had an opportunity to hear from Ann O'Brian at first hand but, as I've said, because she is deceased the law (inaudible) [allows] an exception to the normal rule that hearsay evidence is not admissible by allowing evidence of what Ann O'Brian has said to have said to be given in Court by the person to whom she gave her account. She gave her account to Sergeant Mason and he read out what he said was the statement that he had taken from her. Now, you will of course bear in mind that while Shirley (sic) Harkins in her evidence accepts that she spoke to Ann O'Brian, she does not accept what is contained in the statement which Sergeant Mason read as having been said by her. So you have a number of things to consider in relation to this statement attributed to Anne O'Brian. First of all, you will have to come to a view as to whether Sergeant Mason gave you an accurate report of what the deceased, Ann O'Brian, actually said to him. You have got to decide whether Sergeant Mason is credible and reliable on that point. I don't think he was challenged as to whether he had taken an accurate note of what was said to him but that is the first question to consider. However, the matter does not end there by any means because you have got to decide as to whether you can accept what Sergeant Mason noted from Ann O'Brian as credible and reliable in this sense: is Ann O'Brian to be taken to be credible and reliable in relation to what she is said to have said? Now, if you are satisfied that Ann O'Brian can be taken to be credible and reliable then her hearsay statement becomes part of the case and you can make whatever use of it you see fit but before coming to the view that what is attributed to Ann O'Brian is to be regarded as credible and reliable, in other words coming to the view that Ann O'Brian is credible and reliable, you will I suggest have to be particularly careful for the reasons that Mr. Thomson [counsel for the appellant] gave to you in the course of his address. First of all, think about the manner in which the evidence was delivered to you. You did not see Ann O'Brian. Sergeant Mason was on oath but Anna [sic] O'Brian was not on oath when she gave her statement to him and because you have not seen her in the witness box you are unable to make a judgment of what you make of Ann O'Brian, as to whether you find her a reliable and credible sort of witness. You haven't seen her demeanour, you haven't seen the way she responded to questioning and in particular you have not seen the way in which she might have responded to cross-examination. There was no opportunity to defence counsel to cross-examine Ann O'Brian. The second set of considerations that you would have to have in mind is does her evidence correspond, is it consistent with the other evidence you heard or is it inconsistent? You will in relation to that have regard to Mr. Thomson's list of 10 points. He went through a number of matters in which he said that you were entitled to expect Ann O'Brian to be reliable about, that she claimed a long acquaintance with the late John Divers and that you will remember that Mr. Thomson was able to take you through a list of 10 points in which she was inconsistent, particularly with the evidence of the two support workers from the Glasgow Association of Mental Health, Peter Masterson and Helen McLuckie. Mr. Thomson accepted that individually some of them were minor points but together or perhaps separately he put them to you as indications of how Ann O'Brian on matters on which she might be expected to be reliable did not appear to be reliable when contrasted with the evidence of Peter Masterton and Helen McLuckie. As a third group of considerations, you must have regard to the sort of person that you know Ann O'Brian to be from other evidence and in particular her condition at the time she met, according to her she met, Sharon Harkins in Mitchell Lane and Mr. Thomson reminded you of these. Ann O'Brian accepted she was a drug addict at the time, she had been a drug addict for a number of years and at the very point when she met Shirley (sic) Harkins she was on her way to obtain drugs because, according to her and you can see it from the statement, she was, the expression used is rattling and you have had evidence to explain to you what rattling means, needing a dose of drugs, and Mr. Thomson very eloquently put to you or reminded you, it is not just his eloquence, it is based on evidence, he reminded you of what the effect on the body of a drug addict is if that drug addict does not have her drugs. Again Mr. Thomson reminded you that Ann O'Brian was ... is everyone in the jury comfortable? I am just conscious that ... I am afraid I have more to say but I trust everyone is comfortable? You will remember what Mr. Thomson said about timing. Ann O'Brian was claiming to recollect a conversation she had with Sharon Harkins six days prior to the meeting ... sorry, the timing is, as I recollect, Ann O'Brian spoke to Sergeant Mason I think on the 24^th August. She was recollecting, or claiming to recollect a meeting with Sharon Harkins some six days prior to that. Now, how reliable Mr. Thomson asks and how reliable you must ask yourself can be an account of a conversation which had occurred six days prior and was at a time when Ann O'Brian was looking for drugs? So in relation to the Ann O'Brian statement which is an important part, and I think the Advocate Depute accepted it is an important part of the Crown's case against Sharon Harkins, there are a number of considerations which you must have in mind before accepting it as credible and reliable. Of course, what Mr. Thomson says is that if you look at these various factors you really cannot be satisfied that this is credible and reliable evidence"

Submissions

"So I doubled back and Ah sat doon. Ah asked her what she was talking aboot, I said 'WHAT DO YOU MEAN AH MIGHT NO BE ABLE TO SEE HIM'. She said 'ME AND MA BOYFRIEND DONE JOHN IN'. I said 'WHAT DO YOU MEAN, DONE HIM IN', she said 'WELL PUT IT THIS WAY, HE WISNAE MOVING WHEN WE LEFT THE HOOSE'."

In advancing that particular submission, counsel made clear that he was not inviting innovation on the approach which Nulty indicated should be followed by a trial judge.

Discussion

"In the court's view, in assessing whether the procedures involved in the questioning of the anonymous witness were sufficient to counterbalance the difficulties caused to the defence due weight must be given to the above conclusion that the anonymous testimony was not in any respect decisive for the conviction of the applicant. The defence was thus handicapped to a much lesser degree".

In the following paragraph of his opinion - paragraph 86 - Lord Mance himself then says:-

"This statement of principle may be read as suggesting that the extent of any handicap and the extent to which anonymous evidence is decisive are not separate, but interrelated, aspects of a single overall question, viz whether the trial was 'fair'"

".....

It is plain, however, that an inability to cross-examine a witness, whether as a result of death or otherwise, does not necessarily lead to a infringement of Convention rights. Although the respondent will not at his trial have an opportunity of cross-examining Mr B in person, there will be available to him material for challenging the latter's credibility and reliability. That includes a measure of apparent inconsistency between Mr B's first and third statements as to whether it was not his signature which appeared on the form referred to in charge (1), and evidence said to be available that Mr B's statements may have been adversely affected by a habit of indulging in alcohol. The Crown, in so far as seeking to rely on Mr B, will have for that purpose only his relatively limited statements to the police; they will not have him as a living witness, if there were a basis to do so, to contradict the explanations and qualifications advanced by the respondent in his interview. The respondent, on the other hand, will be able to rely on these explanations in so far as exculpatory."