Scottish High Court of Justiciary Decisons

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Cite as: 2009 GWD 9-150, 2009 SCL 683, 2009 SCCR 339, [2009] ScotHC HCJAC_18, [2009] HCJAC 18

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Eassie

Lord Penrose

[2009] HCJAC 18

Appeal No: XC99/05

OPINION OF THE COURT

delivered by LORD EASSIE

APPEAL

MARK MURDO URQUHART

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Kerrigan, Q.C., Niven-Smith; Morison Haggerty, Dunfermline

Respondent: Duguid, A.D., Q.C.; Crown Agent

18 February 2009

Introduction

[1] On 14 January 2005 at a sitting of the High Court of Justiciary in Edinburgh the appellant was found guilty by the jury of a charge of rape. The terms of the libel of which he was convicted were:

"on 24 January 2004 at a lane between Central Park car park and Chapel Street, both Cowdenbeath, Fife, you did assault [JK], c/o Fife Constabulary, Cowdenbeath, and did handle her private parts, attempt to kiss her on the mouth, seize her arms and force her to the ground, restrain her there, place your hand over her mouth, place her legs over your shoulders, lower her clothing, insert your private member into her private parts and you did rape her."

[2] The appellant sought, and on 9 May 2005 was granted, leave to appeal against that conviction on the ground that in his charge to the jury the trial judge had misdirected the jury in a manner constituting a miscarriage of justice ("the original ground of appeal"). A hearing on the original ground of appeal was thereafter fixed for 17 February 2006 but on that date counsel withdrew from acting for the reason that the appellant had withdrawn his instructions to his solicitors. The appellant then sought a continuation of the appeal (which was granted) in order to instruct other solicitors with a view to lodging supplementary grounds of appeal based on alleged failings of those representing him at the trial. Following the commonly used professional shorthand, we shall refer to those supplementary grounds as "the Anderson grounds".

[3] Eventually, more than a year later, on 11 April 2007, the proposed Anderson grounds were lodged; responses were then sought from those acting for the appellant at the time of the trial; and the Anderson grounds were in due course considered by the judge who had considered the original ground of appeal. On 4 June 2007 he granted leave as respects three paragraphs of the Anderson grounds. In an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 the court, on 11 July 2007, allowed a fourth paragraph to be added. Thereafter a number of procedural hearings took place in which those acting for the appellant informed the court that the appeal was not yet ready to proceed for a variety of reasons. It is perhaps not profitable to record or discuss the reasons wherefor those acting for the appellant in place of those originally instructed in the appeal considered the appeal not ready to proceed but inevitably further delay has resulted from them.

The original ground of appeal

[4] The original ground of appeal is couched in these terms:

"The presiding judge misdirected the jury in his charge to the jury regarding the standard of proof required for conviction. At page 11 of the said charge to the jury (lines 17 and 18) he directs the jury as follows:

'However, if you thought that the accused is guilty but at the same time you had a reasonable doubt about his guilt our law says that you must give him the benefit of that doubt and acquit him. If you have no such doubt then you must convict. So it depends upon what is a reasonable doubt is [sic]. It is quite difficult to explain but a reasonable doubt is a doubt based on good reason. It is the kind of doubt that would make you pause or hesitate and reconsider an important decision in your own lives.' [Quotation not indented in the original.]

At page 14 of the charge to the jury (lines 7-11) the presiding judge directs the jury 'if there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do.'

At page 14 and 15 (starting at line 24 of page 14) the presiding judge directs the jury '... but a reasonable doubt can be established by a single source of evidence.'

In the directions at page 11 referred to above the jury are directed that if they thought the accused is guilty but at the same time hold a reasonable doubt then the law says they must acquit. Thereafter the presiding judge defines reasonable doubt as a doubt which makes you hesitate and reconsider a decision. Taken together the jury were asked in these directions to decide if the appellant was guilty and then if so to consider whether they hold a doubt such as would cause them to reconsider that conclusion. This is a material misdirection because the jury should not have drawn a conclusion of guilt before they were satisfied beyond a reasonable doubt of the same. Moreover the definition of reasonable doubt is normally a doubt which results in hesitation not reconsideration.

In the directions at pages 14 and 15 above there was a misdirection because no evidence is required in order for a jury to have a reasonable doubt the accused being presumed to be innocent.

It is submitted that the said misdirections have resulted in a miscarriage of justice."

In his submissions to us, counsel for the appellant rehearsed what was said in this ground but added little by way of material amplification of its terms.

[5] We take first the criticism to be distilled from the somewhat unstructured terms of this ground of appeal that the trial judge erred in his explanation to the jury of what was meant by reasonable doubt, namely by adding after the reference to a doubt causing hesitation, a reference to a re-consideration of an important decision in the lives of the jury members. The trial judge goes on in the succeeding passage of his charge to exemplify further what he meant by this in practical terms.

[6] However, in so far as the ground of appeal complains of the adding of the words "and reconsider", the short answer to that complaint is to be found in the decision of this court in Adams v HM Advocate 2005 S.C.C.R. 479, to which we were referred by the Advocate depute. In that case the presiding judge charged the jury that a reasonable doubt was "the sort of doubt which, if it affected a matter of importance in your own life, would cause you to pause and reconsider." The appeal was directed to the propriety of the inclusion of the words "and reconsider". And the appeal was refused. In paragraph [9] of his Opinion in that case Lord Macfadyen, with whom the other members of the court agreed, said:

"It is possible, in my opinion, to dispose of this ground of appeal very briefly. Accepting, as the appellant did, that it is legitimate to direct a jury that reasonable doubt is the sort of doubt that would cause a juror, in a matter of importance in his or her own life, to pause or hesitate (see, for example, MacDonald v HM Advocate, Lord Justice Clerk Ross at p 671B), the only issue raised on the appellant's behalf is whether the addition of the words 'and reconsider' altered the standard in a sense adverse to the appellant. This case is, in my opinion, distinguishable from cases such as MacDonald, Buchanan v HM Advocate and A v HM Advocate, in which the additional words used implied that a reasonable doubt was one which would dissuade the juror from a particular course of action. Considering the language used by the trial judge in the present case, I can see no sensible purpose that would be served by a pause or hesitation other than that it should afford the opportunity for further thought; for 'reconsideration' of, 'reflection' upon or 'review' of the situation, I am therefore of opinion that to articulate that point by the introduction of the words 'and reconsider' into the sentence in question made no material difference to the sense of the direction. Those words did not, in my opinion, set an unduly high standard for reasonable doubt and thus lower the standard of proof incumbent on the Crown. In my view that is clearly so when the words which Mr Shead sought to criticise are read, as they ought to be, as part of the whole passage in the charge dealing with reasonable doubt. They therefore did not constitute a misdirection."

[7] In so far as the other criticisms suggested in this original ground of appeal are concerned, it is of course important to see the passages of which complaint is made in their proper context within the trial judge's charge as a whole. The passage at page 11, lines 7 to 18, quoted in the opening part of the original ground of appeal, is preceded by the following passage, commencing at page 10, line 8:

"The third heading is about the standard or quality of the evidence that is required before there can be a conviction and the rule is that the standard of proof required before there can be a conviction in Scotland is that the jury must be satisfied beyond reasonable doubt that the accused is guilty. Now, what does that mean? Well, it doesn't mean that you can find the accused guilty if you think well, he is guilty on balance rather than not guilty. It is not a weighing up of the evidence and seeing which way the scales fall. But equally of course you can't expect things to be proved as a matter of absolute certainty. Human beings aren't capable of coming to court in these sort of situations and proving things to that sort of level. So how it is usually explained is like this: if you are satisfied on the basis of the evidence you have and the directions that I have given to you that the accused is innocent of this charge then it is quite simple, you just acquit him. If you're satisfied on the same basis that the accused is guilty beyond reasonable doubt then you would convict him. However, if you thought that the accused is guilty ... [here the charge continues into the passage quoted at the outset of the original ground of appeal and which we have indented, for easier reference]."

In light of that passage it is apparent that the trial judge was simply endeavouring to convey to the jury the notion that it was not enough for the jury to consider the accused to be guilty unless they could do so beyond any reasonable doubt. In doing so he was reflecting what had been said shortly before, to the effect that belief that the accused was guilty on the balance of probabilities was not enough.

"So those, ladies and gentlemen, are the general rules of evidence but there is one final twist which I have to tell you about and that is this: the rule of corroboration which I mentioned which applies to the prosecution case doesn't apply to the Defence. If there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do."

The extracted passage at the foot of page 14 of the charge, continuing on to page 15, is simply part of a summary of the position respecting inter alia corroboration. Given that context, in which the trial judge is contrasting the need for corroboration of the Crown case with the absence of a need for corroboration of any defence evidence, the directions are understandable and unobjectionable.

[10] Accordingly, when read in proper context, we are satisfied that there was no misdirection of the jury by the trial judge in the passages selected in the original ground of appeal. The original ground of appeal therefore falls to be refused.

The Anderson grounds

[11] The supplementary, Anderson grounds maintain that "a miscarriage of justice has occurred in relation to the Appellant's conviction, due to inadequate preparation and presentation of the Appellant's defence." The Anderson grounds then proceed to particularise that general contention under four heads which, simply for cataloguing at this stage, may be briefly listed as follows:

(i) Failure by counsel at the trial properly to cross-examine the complainer;

(ii) Failure by the solicitor and counsel by way of preparation for the trial to obtain expert evidence respecting the effects of the appellant's excessive consumption of alcohol as an explanation for his change of position from police interview to response to caution and charge;

(iii) Failure by the solicitors and counsel to obtain, in advance of the trial, mobile telephone record evidence which might have demonstrated that, after the sexual encounter, the complainer had sought and noted in her mobile telephone the appellant's mobile telephone number and thereupon "dialled" the appellant's telephone number to confirm the accuracy of her insertion of that number in her contact list; and

(iv) Failure by trial counsel in cross-examination of the Crown's medical witness to highlight that evidence given by that medical witness to the effect that the complainer had bruising to her arm might be explained by the appellant's account of helping the complainer up from the ground after the sexual intercourse.

From that catalogue it is evident that the Anderson grounds fall into two categories, namely (a) the complaint of inadequate forensic performance by counsel during the trial [heads (i) and (iv)] and (b) the complaint of failure by the appellant's legal team to prepare appropriately for the trial by obtaining the additional evidence now desiderated by the appellant [heads (ii) and (iii)]. We find it convenient to discuss the first group - forensic performance - before considering the second group - preparation for the trial.

Forensic performance (1)

[12] The first complaint advanced is to the effect that in the course of presenting the appellant's instructed defence that intercourse had occurred with the complainer's consent, trial counsel failed, in the cross-examination of the complainer, to explore and challenge the "inherent unlikelihood" of the complainer's account respecting the removal of her clothing. This head (i) of the Anderson grounds is as follows:

"The Appellant's Counsel failed to cross-examine the Complainer as to how the Appellant had managed to remove her clothing (shoes, trousers and pants) in order to achieve penetration. Thus the defence failed to test or highlight for the jury the inherent unlikelihood of the Complainer's account as opposed to that of the Appellant (i.e. that this was a willing and entirely consensual encounter)."

[13] The act of sexual intercourse, which the appellant admitted to have occurred, took place in the open air on an area of ground adjoining a lane in Cowdenbeath. The appellant, on any view and on his own concession, had consumed a very large quantity of alcoholic drink. The complainer had also been consuming alcoholic drink. Having, in his examination in chief, brought the complainer to the locus, the trial Advocate depute then established with the complainer the clothes which she was wearing at that time. The clothing included, on the lower part of her body, a pair of jeans and black shoes; and on the upper part a "thin strapped, high top" and a cord jacket. The trial Advocate depute then questioned the complainer about the removal of her clothing in these terms:

"How did you go down on to the ground? - He pushed me onto the ground. He sort of had a grab of me and then he covered his hands over my mouth so that I would stop yelling and then I tried to get my phone out of my bag and stuff but I couldn't move my arms. Then I think ... I don't know how he managed to get my trousers unbuttoned and then I think then I think [sic] he had raped me at that point and then everything else is just a blank.

All right, I have to ask you for a little more detail about that? - Yes.

You said that he put your legs up by his shoulders [this reflected an earlier answer by the witness]. Where exactly do you mean? - Just right of the top on his shoulders.

You mean resting on his shoulders? - Yes.

Had he got your jeans undone before he did that with your legs or after it? - I really can't tell you. It happened so fast.

Did you[r] jeans come off completely? - Yes.

So your jeans were taken off? - Yes.

Were you wearing underwear of some sort? - Yes.

What happened to that? - They were with my jeans.

Taken off as well? Yes."

[14] In the course of his cross-examination of the complainer counsel for the appellant, having explored a conversation between the appellant, the complainer and two other girls (following those girls' interruption of an alleged sexual encounter of fellatio) continued thus:

"Thereafter when they left did you not take his penis back out and start to have oral sex with him again? - No.

Did you not unbuckle his belt? - No.

And he unbuttoned your jeans? - No.

And then he touched your breasts whilst you're basically masturbating him? - No.

And he asked you if you would lean over the brick structure to have sexual relations for the purpose to have sex from behind? - No.

And you said no at that period because you had your period? - I had my period.

And he then asked you to keep on giving him oral sex? - No.

And then he said, asked you if you had ever had sex when you're having periods, and you said no? - No.

And he said it is not really that sore when you're having a period? - No, that didn't happen.

You then said that notwithstanding you were having your period you would give it a go? - No.

And at that point he put his jacket on the ground and you lay down on your back and you had your jeans halfway down you round your knees? - No.

And he got on top of you and your jeans were halfway down and he had sex lying down on the jacket which lasted for about 15 to 20 seconds? - No."

[15] As counsel for the appellant stated, it is correct that trial counsel did not cross-examine the complainer in any detail as to the supposed impossibility, or improbability, of the removal of her jeans and underwear. However, as was pointed out by the Advocate depute before us, trial counsel did return to this issue in his speech to the jury. The transcript of the relevant passage of his speech read thus:

"Let's also consider the logistics of how she describes the rape. I think she says, 'I put my legs up on his shoulders' (inaudible) my shoulder. He was covering his hand with my mouth and his arms were outside my legs.'

Now, I might recall that she seems to have both his arms involved with both her arms but also she has him having his hand over her mouth to cover up any screams. Now that, ladies and gentlemen, is not possible, is not possible because you cannot hold two arms and cover her mouth at the same time.

And she has herself more or less bent double in this particular scenario. Ladies and gentlemen, the (inaudible) of how she physically describes the rape with more or less being bent double is (inaudible) especially when you consider that there's no muscular or tender nor muscular pain or tenderness reported when she sees the doctor after the whole experience."

[16] In the course of his submissions respecting this, and the other, Anderson grounds, counsel for the appellant referred to the decision in Anderson v HM Advocate 1996 JC 29; 1996 S.C.C.R. 114; and to McIntosh v HM Advocate 1997 S.C.C.R. 389. As pointed out by the Advocate depute, a useful summary of the scope of an "Anderson" appeal is to be found in the Opinion of the Court, delivered by Lord Macfadyen, in Burzala v HM Advocate 2008 SLT 61 at para 33:

"It is salutary, when considering an appeal advanced on the ground that the representation of the appellant at his trial was defective, to bear in mind the observations made by Lord Justice General Rodger in Mills (at 221F-H) and quoted in paragraph 28 above. They are as relevant to such an appeal as they were to the additional evidence appeal in which they were made. They, and the observations of Lord Justice General Hope in Anderson (at pp 43-44) (p 163; pp 131C-132A) quoted in para 23 above, explain why the scope for an appeal on the ground of defective representation is limited. The limitations are clearly established. Such an appeal, like any other, can only succeed if there has been a miscarriage of justice (Criminal Procedure (Scotland) Act 1995, s 106(3)). That can only be said to have occurred if the conduct of the defence has deprived the appellant of his right to a fair trial (Anderson, p 43 (p 163; p 131F); Grant [2006 JC 205], (p 209; p 565) para 21). That, in turn, can only be said to have occurred if the appellant's defence was not presented to the court (Anderson, p 43 (p 163; p 131G); Grant, (p 209; p 565) para 21). That may be so if the appellant's counsel or solicitor acted contrary to instructions and did not lay before the court the defence which the appellant wished to put forward (Anderson, pp 43-44 (p 163; p 132A)). It may also be so if the defence was conducted in a way in which no competent counsel or solicitor could reasonably have conducted it (Grant, (p 209; p 565) para 21); and that has been illustrated by reference to counsel having made a decision that was 'so absurd as to fly in the face of reason' (McBrearty, [2004 J.C. 122] (p 130; p 922) para 36), or 'contrary to the promptings of reason and good sense' (McIntyre, [1998 J.C. 232] p 240H (p 379; p 388)). It is clear, however, that the way in which the defence is conducted is a matter for the professional judgment of counsel or the solicitor representing the accused person (Anderson, p 43 (p 163; p 131D)). Criticism of strategic or tactical decisions as to how the defence should be presented will not be sufficient to support an appeal on the ground of defective representation if these decisions were reasonably and responsibly made by counsel or the solicitor in accordance with his or her professional judgment (Grant, (p 209; p 565) para 22)".

We would observe that, while Burzala is otherwise reported elsewhere, it is apparently only the Scots Law Times' report which contains paragraph 33.

[17] Counsel for the appellant did not take any real issue with the summary of the tests for an Anderson appeal described by Lord Macfadyen in his deliverance of the Opinion of the Court in Burzala. It is thus clear that the standard to which criticism of the forensic performance of an appellant's trial representative must rise, as the initial stage in the consideration of an Anderson ground, is a high one. As indicated in the Burzala summary, it may be, and has been expressed, in various formulations, but the professional judgment of the trial counsel or solicitor must generally be respected and it is only a marked departure from what might be expected of a reasonably competent forensic practitioner which will provide any foundation for an appeal on an Anderson basis.

[18] We are well satisfied that the criticism advanced in this head of the Anderson grounds nowhere approaches that standard. It cannot possibly be said that the appellant's defence to the effect that the sexual intercourse, and other preceding sexual activity, was consensual was a defence not advanced to the jury. The criticism relates to the course adopted by counsel of not exploring, by detailed cross-examination of the complainer, the precise mechanisms whereby her lower clothing came to be removed. That was pre-eminently a matter for the judgment of counsel in the course of the trial proceedings and, having regard to the complainer's testimony in her evidence in chief that she had no recollection of how that occurred, we consider that it was a reasonable judgment for counsel to take that no profit to the appellant would result from pursuance of that matter in cross-examination and that the issue might be better alluded to in his speech to the jury, which counsel did, in the passage which we have quoted above. There is no substance in this head of the Anderson grounds.

Forensic performance (2)

[19] The second respect in which counsel is criticised for his performance in the trial (Anderson ground (iv)) relates to his cross-examination of the medical witness - Dr McKean - who had examined the complainer following her complaints after the incident. More specifically, the criticism relates to one of the injuries observed by Dr McKean (counsel having evidently done his best to neutralise the doctor's evidence respecting the two other injuries noted). That injury was bruising to the left upper inner arm of the complainer.

[20] To put this complaint in context, part of the appellant's account of matters was that after the act of sexual intercourse on the ground, he had taken the complainer by her arm to assist her in getting up from her supine position. Prior to the trial, those acting for the appellant had also obtained, respecting Dr McKean's report, advice from Professor Busuttil, a forensic pathologist, and had consulted with him. But it is not contended that the defence of the appellant at his trial was at fault in not calling Professor Busuttil; and having regard to the terms of his report, and the course of counsel's cross-examination of Dr McKean, we do not find that in any way surprising.

[21] As might be expected, the trial Advocate depute put to Dr McKean that the bruising to the complainer's upper left arm was consistent with the complainer's account (which he shortly summarised) but adding, in the Advocate depute's words, "albeit that it might also be consistent with other things". To that question, Dr McKean replied: "Yes, I would accept that as a possible explanation".

[22] In cross-examining Dr McKean, trial counsel elicited, as respects the injury in question, namely that shown in photograph No.10 in the photographs before the jury, the following:

"The fingertip bruising there I think you have said would be consistent with if the accused was forcibly holding the complainer by the arms? - Yes it would be consistent with that.

But again in the context of the scenario that I have described to you, passionate drinking, rather unusual encounter, bruising of that sort of nature could occur in that perhaps rather rough encounter is that fair to say? - Yes a firm hold to support someone or other mechanisms would be equally likely to produce fingertip bruising.

Because whilst one would accept that type of fingertip bruising is not typical of a normal sexual encounter, if passions are greatly aroused and a bit rough and unusual then that sort of bruising could be created? - Yes I think there are many explanations for the cause of this bruising, which could be equally consistent with the mechanism you describe.

When you say many mechanisms, what kind of mechanisms? - Well you alluded to intoxication with alcohol. I notice snow on the path. Someone falling, someone grasping to support them - you know, all these types of things would result in a grasp fingertip bruising. It may not be an assailant mechanism. It could be a supportive or helpful mechanism. There is no way that I can tell from this photograph what mechanism is involved.

So it could be an assault, where equally it could be the reverse, it could be a supportive mechanism? - Yes." [Appendix No.18, p 97 line 11 ff].

[23] In his address to the jury trial counsel naturally founded on the concessions gleaned in that passage of his cross-examination. He referred the jury to the appellant's evidence that he had supported the complainer in raising her from the ground and, importantly, the evidence of Dr McKean that the bruising in question could well have come from a supportive action.

[24] Ultimately the criticism advanced is that, notwithstanding the agreement obtained from Dr McKean that the bruising might have resulted from a supportive mechanism, counsel should have pursued with Dr McKean more specifically that the bruising was consistent with the appellant's account of assisting the complainer to her feet following the act of sexual intercourse.

[25] Our distinct impression is that in his cross-examination of Dr McKean counsel concluded that he had achieved as much as he could profitably achieve by way of cross-examination. And that he had achieved a basis upon which he could advance to the jury - as he did - that the medical evidence respecting also this injury was neutral.

[26] This is plainly a matter for the judgment of trial counsel. We can see no good ground upon which his judgment can be impugned, let alone a ground upon which criticism of his judgment in this matter might approach the standards of an Anderson ground. We therefore see no merit in the ground of appeal tendered as ground (iv) of the Anderson grounds.

[27] In summary, we are satisfied that there is no merit in either of those heads of the Anderson grounds which relate to the conduct of the trial by counsel.

Preparation for trial (1)

[28] The background circumstances to this ground of appeal (Anderson ground (ii)) is are that when first interviewed by the police on 30 January 2004 the appellant, put shortly, maintained that he had no recollection of matters occurring after he had left a particular public house - the Clansman - on the preceding Friday night or early Saturday morning and thus had no recollection of any sexual activity after he had been in the Clansman. However, on the morning of Sunday 1 February 2004, when he was charged (by the same police officers as had interviewed him previously) with the rape of the complainer, the appellant in response said this:

"I'm wanting tae say that [JK] was chasing me all night inside Partners. Evertime I approached my brother-in-law who was dancing with a friend at the time she would come up tae me and she would try tae dance in front of me and rub her backside against my penis and I'd move away fae her. This happened several times in the night, then outside Partners I was waiting to see who would come out back for a party, friendwise, eh she come up and kissed me there and I thought it's the end of the night, I've no' got anybody, what the hell. I sat doon on the, the windowsill at the door next tae Partners and she come over tae me again and started kissing me, took my hand and led me towards the path and eh if you go up the path a bit there's a little electrical box type thing and eh we started kissing there. She took out my penis and started rubbing it then we heard voices, two girls came towards us. I put my penis away. She had a bit of a conversation with them and eh they carried on walking. She took my penis out again, I undid her belt and her button and started playing with her and eh she asked if, if she would give me a blow job and she did, then I asked her if she would bend over the, the box. She says no I've got my period, it'll hurt. I says right then so I asked her if she would give me a blow job again. She said okay and we moved onto the path and eh she was doing that and I was playing with her again and I said have you ever had sex with your period and she says no. I says well it doesnae hurt that much. She says right then, so I put my jacket down, she lay down on the, on my jacket and her trousers were down at her knees, eh I inserted my penis, we had sex for about a minute and I stood up and says sorry it'll normally last longer than that. So I put myself, fixed myself. She says it's okay I'll no tell anybody. So she, I helped her up, she fixed herself, she took my hand asked me for my phone number and I gave her it. She asked me to be her boyfriend, I says no and carried on walking up the path and ended up in Broad Street. She went up Broad Street and I went down Broad Street and that's basically what happened."

[29] The solicitors acting for the appellant were conscious of the difficulty presented for the defence by this change of position. It is apparent from their file notes that the explanation offered, at an early stage, by the appellant was that he had taken large quantities of alcoholic drink on the evening of Friday 23 to Saturday 24 January 2004 (the night of the offence) and had been drinking heavily on the following Friday (30 January 2004) prior to his being detained and interviewed by the police and that it was only after his arrest (at circa 2030 hours on Friday 30 January 2004) and subsequent continued detention in the police cells that he began to regain memory. In due course the appellant tendered in evidence before the jury a similar explanation (indicating, what we understand not to be disputed, that he had sought to make a statement on Saturday 31 January 2004, but the officers in charge of the case were not available until the following Sunday morning). Counsel for the appellant drew our attention to what was said by the Advocate depute in his speech to the jury. In essence, the Advocate depute submitted to the jury that one possibility was simply that the appellant was lying; but the other, accepting that his recollection had been severely affected by his consumption of alcohol and was in due course recovered, was that his account of matters was, by reason of the consumption of drink, unreliable.

[30] The criticism now advanced on behalf of the appellant of those who acted for him at his trial is that they failed to obtain and lead expert evidence, supportive of the appellant, to the effect that his heavy drinking could have induced lack of memory but that subsequent recall of matters might occur. In that respect, those now acting for the appellant in the appeal obtained two reports to demonstrate, as we understood it, what should have been obtained by the lawyers acting for the appellant at the trial.

[31] The first of those reports is from Dr Paul Skett, who is Reader in Pharmacology in the Institute of Biomedical and Life Sciences at the University of Glasgow. His conclusions are in these terms:

"1. The intake of alcohol as stated by the subject would result in a rapid and substantial increase in blood alcohol levels prior to the alleged incident.

2. Rapid and substantial increases in blood alcohol levels can lead to amnesia (both total and fragmentary).

3. The recall of information by the subject is consistent with alcohol-induced amnesia particularly given the prompting by Police Officers in the previous interviews."

[32] The second report is by Dr Ruth A Gillham, a consultant neuropsychologist at the Institute of Neurological Sciences at the Southern General Hospital, Glasgow who was provided, as was Dr Skett, with, inter alia, transcripts of all the police interviews. Additionally, she had a copy of Dr Skett's report. In her report Dr Gillham says inter alia:

"When initially interviewed by police [the appellant] claimed to be unable to remember events pertaining to the alleged offences. Some thirty-six hours later he claimed that he had recalled events, and indeed gave a detailed account of those events.

There are a number of possible interpretations of this presentation.

1 Mr Urquhart lied when he was initially questioned, as an automatic response to protect himself from saying anything incriminating. Before his next interview he had time to invent material to support his innocence.

2 He was genuinely unable to recall the events about which he was being questioned, realised that this might not sound convincing, and made up a story to cover the facts that he had been given.

3 He was genuinely unable to remember events when questioned on 30 January 2004, and subsequently did recall them and reported them accurately.

It is a matter for the court to decide which of these three possibilities is the truth and I can only comment on whether or not possibility 3 is theoretically possible. There is evidence that at the time of the alleged offence Mr Urquhart had been drinking heavily. The effect of alcohol on memory is well known and it is common knowledge that drinking may cause memory blackouts, in which recall of events during the time that [the] subject was drinking is lost from later recall."

Dr Gillham then reviews some of the scientific literature and concludes "that it is theoretically possible that [the appellant] was being entirely truthful when he was initially interviewed and denied all knowledge of events, and truthful when he subsequently gave a detailed account of them. I cannot comment on the likelihood that he was being truthful."

[33] Assuming that the lawyers employed by the appellant for his trial had instructed and obtained those reports, we have great difficulty in understanding how evidence given by their authors, speaking to the respective reports, would materially have assisted his defence. Dr Gillham, in particular, does not appear to us to provide any material support (and, we apprehend, ~~that~~ in some respects might have presented dangers for the defence when cross-examined by the Advocate depute). Much of what Dr Skett says - and we intend no disrespect whatever to him - amounts to little more than may reflect common experience of those in the general population who, on occasion, may have grossly over-indulged in the consumption of alcoholic drink. Importantly, neither Dr Skett, nor Dr Gillham provides, in our view, an effective answer to the submission by the trial Advocate depute to the jury (which was the branch of the submission upon which he placed most emphasis) that if the appellant's initial amnesia and subsequent recall of memory were the consequence of his admittedly grossly excessive consumption of alcohol, that excessive consumption would be highly likely to impair the reliability of what the appellant said, whether to the police in his response to the charge, or in his evidence to the jury.

[34] In these circumstances, even assuming some professional obligation on those acting for the appellant at the trial to obtain the desiderated reports from those experts, we do not consider that the desiderated reports, subsequently obtained, would have been of any material assistance to the defence. Accordingly, failure to obtain those reports, of no material assistance to the defence, cannot in our view result in their having been, in that respect, any miscarriage of justice in the sense of rendering the appellant's trial unfair. In our view this ground of appeal lacks merit.

Preparation for trial (2)

[35] The second aspect in respect of which the solicitors, and also counsel, are criticised is their failure to seek records of calls made by and to the appellant's mobile telephone on the date of the offence.

[36] In his response to caution and charge by the police on Sunday 1 February 2004 (the terms of which response are set out above), the appellant stated that after the act of sexual intercourse the complainer asked the appellant for his telephone number, which he gave to her. It appears from the attendance note in the solicitor's file that on the same day the solicitor attending on the appellant noted the appellant as saying, "She asked for my no. - I gave her it" (Appendix No.33, p 2). Those notes were subsequently elaborated in a typed statement which repeated that information, but with an addition that the appellant also got her telephone number.

[37] A consultation with counsel, attended by the appellant, was held on 5 November 2004. A variety of matters in connection with the preparation for the trial were apparently discussed. As respects the giving of telephone numbers the typed up, summary version of the solicitor's notes of the consultation reads:

"NB In the course of the meeting it became apparent that [the appellant] had exchanged mobile telephone numbers with the complainer at the time of the incident. She is alleged to have telephoned his mobile phone to see that it was the real phone. Clearly he didn't answer the phone and it therefore counts as a missed call which he deleted on the same evening. [Counsel] and myself both agree that the phone records of either or [sic] them are unlikely to show a record of this exchange."

The solicitor's manuscript notes, presumably taken in the course of the consultation, appear to read:

"She asked for ph. no - I gave her it. She asked if I would be her boyfr. I said n. She rang my phone to make sure it the right number".

In the margin is noted "Phone Record" and beneath that "N.a was a missed call". A little lower down in the manuscript notes is noted:

"I deleted her number fr. the missed call list. I had no intention of phoning her. A one night thing".

[38] In her evidence the complainer did not challenge, in any active sense, the suggestion that she might have sought and obtained the appellant's mobile telephone number. Her position in cross-examination was that she simply could not remember whether or not there was any exchange (transcript, p 60) and then, at p 69:

"And you then rang his mobile phone to make sure that he had given you the right number? - No, well I don't know.

And that was the only connection between you and your mobile phone, was to ring his phone to make sure that he had given you the right number because you were keen that he had given the right number so that there would be no trouble contacting him at a later stage? - I don't know."

[39] The contention advanced on behalf of the appellant is first, that because of the failure to obtain records of the mobile telephone calls to the appellant's mobile telephone, counsel was seriously handicapped in his cross-examination of the complainer, a matter which the Advocate depute submitted should be examined and assessed against the fact that the complainer did not, or was not able to, dispute what was put to her by counsel for the appellant in cross-examination.

[40] However, in any event, that contention assumes that the relevant telephone records would have been recoverable. In that respect, we have to note that according to the file of the trial solicitors, the first occasion on which the appellant suggested that the complainer had actually made a telephone call to his mobile telephone (to confirm the correctness of the insertion of his orally dictated number in her "contact list") was at the consultation held with counsel on 5 November 2004.

[41] Those now acting for the appellant have obtained and produced in the appeal process a report, instructed by them, by an expert, Mr John Hugh Butler of Geode Forensics Limited, who was asked to answer a series of questions. It is dated 15 October 2008. Mr Butler's task was made difficult by the fact that he could not be informed of the company providing the mobile telephone service to the appellant at the relevant time. In his report it is stated that by "the time of the commencement of the appeal" the appellant's SIM card "had been released to a third party and lost". So, even in general terms, the identity of the mobile telephone provider to the appellant's mobile phone at the time of the alleged offence is not given to Mr Butler.

[42] The need, at least in general terms, to identify the provider at the time of the events is evident from an earlier paragraph in Mr Butler's report in which he states:

"The records kept by phone companies have become more comprehensive over the last few years and have been retained for longer, a direct result of legislation such as the Data Retention (EC Directive) Regulations 2007. Further research would be needed to ascertain the exact situation in 2004 and would be complicated by not knowing which phone companies were involved. It is highly likely that call records would have been retained for at least a month and possibly as long as the twelve months which is required practice today. Certainly T-mobile kept records for a year at that time and Orange retained pay-as-you-go phone records for six months."

Consequently, it cannot be said that the relevant telephone records would certainly have been available in November 2004, had they then been sought by those acting for the appellant. We take November 2004 as the relevant date, since it is clear that it was only then that the appellant indicated that the complainer made any telephone call to his mobile telephone.

[43] We note that in McIntosh v HM Advocate 1997 S.C.C.R. 389, the court observed at p 396:

"As for the defence which is said to have been lacking due to inadequate preparation by the instructing solicitor, there is a complete absence of detail in the papers which have been put before us to show that anything was lacking when the case came before the court for trial which, had the case been prepared more thoroughly, would have been relevant to the appellant's defence. As the advocate-depute pointed out, the question which has to be addressed in an appeal on this ground is not confined to the conduct of the accused's counsel or his solicitor. The critical issue to which the ground of appeal has to be directed is what the effect of that conduct was on the defence. This cannot be discovered unless the appellant is in a position to identify the respects in which his defence was affected by this conduct. Where inadequate preparation is put in issue, as it has been in this case, the argument can take the appellant nowhere unless he can show what information would have been revealed if the preparation of the case had been conducted adequately."

In the present case the appellant does not offer, and we assume is not able, to establish that, had those originally acting for him sought the relevant telephone records in November 2004, those records would have been available; let alone, of course, that the records would have given any confirmation of the appellant's position stated at the consultation in November 2004.

[44] Apart from that difficulty for the success of the argument for the appellant under this head of the Anderson grounds, it also falls to be considered whether, in any event, the decision by the trial solicitor and counsel not to seek recovery of the telephone records can properly be categorised as a failure in the presentation of the appellant's defence which satisfies the high requirements of an Anderson failure. We can see no reason why the same tests relating to the presentation of the case in foro should not apply to preparation for that presentation, due regard being had to the fact that, in the course of proceedings in the court room, the person conducting those proceedings will often be required to take instant decisions without the greater time for reflection which may be available in the taking of pre-trial decisions. The authorities to which we were referred do not suggest any distinction.

[45] We acknowledge that evidence from a mobile telephone company's records that the complainer had indeed telephoned the appellant's mobile telephone at the relevant time would have been of some assistance to the defence (albeit that its overall significance was, in the event, rendered somewhat less by the complainer's acceptance in cross-examination that, as opposed to denial of the making of that call, she simply did not know whether she had telephoned his mobile telephone number). We also note the information provided to us by counsel that the firm of solicitors in question was aware of the existence of Geode Forensics Limited and the existence of mobile telephone records as a source of evidence, since that firm, and a predecessor firm with which it had amalgamated, had previously instructed Geode. However, as respects that latter matter, we would observe that from the notes of the consultation on 5 November 2004, the solicitor and counsel were certainly not unaware of records of telephone calls as a source of possible evidence. The view which they appear jointly to have taken appears to have been that because, on the appellant's own account, the appellant had deleted the "missed call" entry, it would not be extant on any record which might be held by the service provider.

[46] Assuming for the moment that the records might have been extant, in technical terms the assumption made by solicitor and counsel may have been incorrect. It may be that, if one deploys a counsel of perfection, inquiry could have been made with the service provider which might, or might not, have revealed an answer favourable to the defence in the limited way in which such an answer might have provided assistance. But lawyers preparing for trial have to bring a professional and practical judgment to the extent to which matters are to be investigated. Regard has to be had to what is reasonable and practical. It is not every single, conceivable or remote stone which has to be turned in preparation for a trial. The decision in question in this case was taken in November 2004 and, as we have indicated, appears to have proceeded upon the understanding that, by his deletion of the complainer's "missed call" the appellant had deleted any record of that. No material was provided to us to suggest that, among the legal profession at that time, such a view of the technical position respecting deletion of missed calls was so obviously mistaken as to amount to an Anderson failure. We, for our part, are not able from our own experience of mobile telephony, to make such a finding. In short, we are unable to hold that the decision taken by counsel and solicitor at the consultation on 5 November 2004, not to seek recovery of any mobile telephone records was deficient in the manifest respects required by the Anderson tests.

[47] For these reasons, we have come to the conclusion that this branch of the Anderson grounds does not succeed.

[48] Counsel for the appellant naturally invited us to consider all of the Anderson grounds not just individually, but also cumulatively. We have done that. We have to say that even taking everything cumulatively we do not consider that it has been demonstrated to us, as an appeal court, that there was any unfairness in the trial of the appellant arising from the Anderson grounds which would allow us to interfere with the judgment reached by the jurors.

[49] In these circumstances the appeal must be refused.