"(1) on 1 April 2005 at the playground area of Chapelside Primary School, Chapel Street, Airdrie you JAMES McCORMICK, GARY CHARLES BLACK and DEREK CHARLES FERGUSON did assault Steven Pettigrew, now deceased, and did repeatedly punch him on the head and body, push him to the ground and there repeatedly punch and kick him on the head and body all to his injury, thereafter you DEREK CHARLES FERGUSON did seize his clothing and strike him on the body with a knife and you DEREK CHARLES FERGUSON did murder him."

"1. The trial judge erred in failing to direct the jury that it was open to them to return a verdict of guilty to the crime of culpable homicide. In his address to the jury, senior counsel acting for the appellant advised the jury that on the basis of the quality of the evidence available they could not be satisfied beyond reasonable doubt that this was a deliberate stabbing intending to kill the deceased. In his charge to the jury (pages 34-35) the trial judge gave directions on the verdicts open to the jury to return. The trial judge did not direct the jury that it was open to them to return a verdict of guilty to the lesser charge of culpable homicide, if they concluded that the evidence had failed to establish that the appellant had displayed the necessary evil intent required for a conviction of murder. The trial judge was obliged to direct the jury on the circumstances of this case, including the fact that only one stab wound was inflicted and the depth of said stab wound. The trial judge was obliged to explain culpable homicide and give a direction on this point. The trial judge erred in not directing the jury on the issue outlined above.

2. In the whole circumstances there has been a miscarriage of justice."

"One possibility is of course the Crown situation that the assault with the knife was intentional. What you call it after that is a matter entirely for yourself but you certainly could call it murder. The Crown position is that this young man takes a knife and intentionally stabs, intentionally sticks it into the back of the other young man. That is the Crown's position and they say he having done that intentionally, he is guilty of murder, whether or not he intended to kill but the starting point in the murder has to be, don't misunderstand this, the intention of sticking the knife into the other man's body. His Lordship will explain that I am sure.

The other possibility, the other possibility which we have to look at in this case, is that that didn't happen and in some other way, call it accident, call it in the course of a different kind of assault, call it what you want but in that some other way while they fell to the ground, while they were actually rolling about, whether he was taking the legs away from the other man, the knife which he undoubtedly had and should not have had in his possession entered the other young man's body and so through a process caused his death. So for it to be murder, he has to intentionally strike with a knife. That is the Crown case. The other possibility is the other scenario."

Submissions for the appellant

"I deliberately did not do so (a) as the issue was not raised expressly or by implication by either the Crown or the defence and (b) to do so might have been unfavourable to the appellant. Were I to have done so, my charge would have been open to criticism on that basis: viz Whiteside v H.M. Advocate 1996 S.L.T. 299 and Templeton v H.M. Advocate 1961 J.C. 62, Lord Guthrie at page 69."

"It was submitted by the learned Advocate depute that it was a matter for the discretion of the sheriff as to whether or not a direction about the alternative verdict of reset should be given. Reference was made to Kilna v H.M. Advocate in which Lord Justice General Clyde said at page 25:

'Even if asked to give such a direction by the prosecutor or the defence, [the trial judge] is not bound to do so. It is essentially a matter within his discretion'

But that proposition leaves too much to the discretion of the trial judge and the better view, which finds support in Templeton v H.M. Advocate, to which the Advocate depute also referred, is that if a direction in law is necessary in fairness to the accused the judge ought to give it even although the defence has not raised the matter: see Lord Guthrie at page 69. We were informed that counsel for Forbes did raise the question of reset in the course of his address to the jury and that in the course of her address on behalf of Drummond Miss Powrie submitted that the evidence was insufficient for her client to be found guilty of either theft or reset. The sheriff was not asked to give a direction about reset, but the issue was raised and the nature of the evidence in this case was such that it could not properly be said that it was not a live issue for the jury to consider. In these circumstances it was necessary, in fairness to the appellants, for the jury to be told of the alternative verdicts which were open to them on the evidence and we do not accept that a jury, if properly directed on these matters, would be likely to have become confused."

The test ultimately adopted by the court in that case was whether the alternative verdict involved could arise out of what had been a live issue in the case. If that were the case then, in fairness to the accused, the appropriate direction ought to have been given. That approach to the matter was reflected in what was said, in particular, in relation to the alternative verdict of culpable homicide in connection with a charge for murder, in the case of Brown v H.M. Advocate, again by Lord Justice General Hope, at page 391. He said:

"The alternative verdict of culpable homicide is one which should be withdrawn from the jury only with great caution, because the onus is on the Crown to prove its case and all questions as to the weight or quality of the evidence are for the jury and not for the trial judge. The correct approach to the questions raised by the direction as to what constitutes murder should normally be to leave it to the jury to decide whether the necessary degree of wicked recklessness has been established by the Crown. Nevertheless, there may be cases where the number or nature of the blows struck or the weapons used are of such a character that there is no room for a verdict of culpable homicide, in the absence of any other basis for that verdict in the evidence. Parr v H.M. Advocate is one recent example where death resulted from about eight blows to the head struck with a hammer or similar instrument resulting in extensive comminuted and depressed fractures to the skull and there was no evidence on the ground of provocation to justify reducing the verdict from murder to culpable homicide. Broadley v H.M. Advocate  is another, where death resulted from five stab wounds to the head and body suggesting an attack pressed home with great determination, and there was no question of accident, provocation or diminished responsibility. The Lord Justice Clerk pointed out at page 423 in that case that every case depends on its own facts, and for this reason no precise guidance can be given as to when a direction to this effect will be appropriate. The best that can be said is that the question is ultimately one of fact, and that the trial judge should not take this course unless he is satisfied that there is no basis at all for the verdict in the evidence."

While certain dicta in Brown v H.M. Advocate were disapproved in the five judge decision in McKinnon v H.M. Advocate, there was no disapproval of the passage to which we have just referred. In our opinion, it reflects the proper approach to the matter under consideration. In that passage Lord Justice General Hope cited Parr v H.M. Advocate and Broadley v H.M. Advocate as examples of cases in which a jury could not reasonably have convicted of culpable homicide and in which, accordingly, it was appropriate for the trial judge to withdraw that verdict from the jury. It would be possible to add to those examples a case where a victim had been shot through the head, or where a stab wound or wounds had been directed to the heart, or where the offender had used a knife to cut vital blood vessels in the neck of the victim.

"In any criminal prosecution for a serious offence there is an important public interest in the outcome: R v Fairbanks [1986] 1 W.L.R. 1202, 1206. The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge: Von Starck v The Queen [2000] 1 W.L.R. 1270, 1275; Hunter v The Queen [2003] UKPC 69, para 27."

With these sentiments and, in particular, with the emphasis on the part played by the public interest, or, as it might be described, the interests of justice in criminal prosecution, we find it impossible to disagree. In that connection, what his Lordship said in paragraph 23, is apt:

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. ... I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency."

"It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. ... There may be unfairness if the jury first learn of the alternative from the judge's summing up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. ..."

"As these authorities make clear, the duty of the trial judge to direct the jury on manslaughter arises if the jury might reasonably return such a verdict on the whole of the evidence, whether led by the Crown or by the defence. ... the duty applies even though the result may be that the jury convict the defendant of manslaughter on a basis which is different from, and inconsistent with, the case put forward by the prosecution. That is a necessary implication of the judge's duty to direct on manslaughter when it arises on all the evidence, even if the prosecution case is that the jury should accept particular elements of the evidence, on the basis of which they should find the defendant guilty of nothing less than murder. The stance of prosecuting counsel cannot be determinative of the range of verdicts fairly open to the jury on the evidence."

In paragraph 82 he continued:

"Directing the jury on the way that the law applies to any reasonable view of the facts disclosed by the evidence ensures that they have a proper understanding of the way that the law is intended to work, depending on the view of the facts which they take. Therefore, by omitting to mention manslaughter in a case where it could apply on a reasonable view of the facts, the judge will misrepresent the position by making the law seem more rigid and less nuanced than it actually is. While, for tactical reasons, it may suit counsel on either or both sides to represent the law in this way, as offering a stark alternative between murder and acquittal, with nothing in between, in fact the law provides for an intermediate position. The jury are entitled to be told of that intermediate position, whenever it might come into play on a reasonable view of the evidence. The intermediate position may not be to the liking of either the prosecution or the defence, but the jury are still entitled to be told of it, so that they may reach their conclusions, 'in light of a complete understanding of the law applicable to them'; Von Starck v The Queen [2000] 1 W.L.R. 1270, 1275. Where the duty of the judge is to give a direction on the alternative verdict, counsel have to adjust their speeches to the jury to take account of that prospective direction."

"As far as the general basis is concerned it is the opinion of this court that the obligation on the trial judge to charge the jury is fenced by the way the case is presented to the jury by both or all parties. It is not for the trial judge to speculate upon or embark upon areas of possible verdict which have not been canvassed in the evidence or formed part of a submission to the jury (see the dissenting opinion of Lord Sutherland in Hobbins v H.M. Advocate and Johnston v H.M. Advocate, following McPhelim v H.M. Advocate). In these circumstances we consider the trial judge was quite correct not to venture into the field of culpable homicide at all given the way the case was presented by all parties and given particularly that this was a case of concert, as charged, in what was undoubtedly upon the medical evidence a murderous attack."

In our opinion, the particular observations in this paragraph, to the effect that the obligation on the trial judge to charge the jury is "fenced by the way that the case is presented to the jury by both or all parties", are wrong. While, of course, it is not for the trial judge to place before the jury the option of a verdict which would not be justified upon a reasonable view of the evidence before them, it was erroneous to suggest that the way in which the case was presented by parties was in some undefined way necessarily determinative of the options available to the jury. In this connection we note that the cases of Steele v H.M. Advocate, Brown v H.M. Advocate and Regina v Coutts were not cited to the court in Mackay v H.M. Advocate.

"I deliberately did not do so [direct the jury that it was open to them to return a verdict of guilty of the crime of culpable homicide] (a) as the issue was not raised expressly or by implication by either the Crown or the defence and (b) to do so might have been unfavourable to the appellant."

As regards the first of these reasons, in our view, it was immaterial that the issue of culpable homicide was not expressly raised by either the Crown or the defence, for reasons which we have explained. In any event, it could be inferred from what was said by senior counsel for the appellant at the trial in his speech to the jury at page 24 of the transcript, that he intended to imply to the jury that such a verdict might be open to them. However, whether we are right or wrong about that is of no account. As regards the second reason given by the trial judge, it appears to us plain that, from time to time, it may be necessary for a judge in his charge to the jury to give directions which may be considered unfavourable to the appellant, provided that they are given fairly, and in conformity with the law and the interests of justice. His duty, of course, is to ensure that the accused person has a fair trial, but, inevitably, certain directions which it is the duty of a trial judge to give may well be unfavourable to the appellant. We should add that in Whiteside v H.M. Advocate 1996 S.L.T. 299, referred to by the trial judge in his Report, the case explored in evidence by the Crown was one of premeditated murder. In these circumstances, the question of culpable homicide was not seen by the court as a live issue in the trial. Accordingly, no directions on that matter were thought to be necessary.