Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Kingarth	[2009] HCJAC 47 Appeal No: XC423/05 and XC417/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by ROBERT MURRAY First Appellant; and ROBERT O'HARA Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Finnieston, Solicitor Advocate; McClure Collins, Edinburgh

Second Appellant: McBride, Q.C., C Mitchell; Hamilton Burns & Co., Glasgow

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

13 May 2009

Introduction

[1] On 29 April 2005, after a trial in the High Court at Dunfermline which ran for about 7 weeks, both appellants were convicted of a number of offences, including the murder of Paul McDowall on 22 July 2004 in Possilpark, Glasgow. Charge (9) on the indictment was in the following terms:

"(9) between 1 January 2004 and 22 July 2004, both dates inclusive, at Balmore Road, Keppochill Road, Pinkston Drive, Braeside Street, Westercommon Road, and Bardowie Street, all Glasgow and elsewhere you COLIN MCKAY, BRIAN DAVID KELLY, ROBERT MURRAY and ROBERT O'HARA did conspire together and with others to murder Paul McDowall, 6 Westercommon Road, Glasgow, and in furtherance of said conspiracy;

(a) between 1 January 2004 and 1 February 2004, both dates inclusive, at Balmore Road, Glasgow, you ROBERT O'HARA did assault Paul McDowall aforesaid, then seated within a stationary motor vehicle, repeatedly strike the window of said motor vehicle with a knife or similar instrument, and thus attempt to repeatedly strike him on the head and body with said knife or similar instrument;

(b) between 1 February 2004 and 10 May 2004, both dates inclusive, at the car wash at Keppochill Road, Glasgow, you ROBERT MURRAY did, whilst acting along with others, arm yourself and others with firearms, telephone Paul McDowall aforesaid, attempt to induce him to meet with you and thereafter drive to the Hamiltonhill area of Glasgow in an attempt to find and shoot him;

(c) between 1 February 2004 and 10 May 2004, both dates inclusive, at Gairbald Avenue, Glasgow, you ROBERT MURRAY and BRIAN DAVID KELLY did, whilst acting along with others, steal a motor vehicle, arm yourselves with a firearm, drive said motor vehicle to Sighthill Bowling Club, 22 Pinkston Drive, Sighthill, Glasgow, with intent to shoot Paul McDowall aforesaid;

(d) between 1 February 2004 and 10 May 2004, both dates inclusive, at Braeside Street, Glasgow, you ROBERT MURRAY and BRIAN DAVID KELLY did, whilst acting along with others, arm yourselves with a firearm, drive to Bardowie Street, and there, you BRIAN DAVID KELLY with face masked did approach Paul McDowall aforesaid with intent to shoot him and thereafter you ROBERT MURRAY and BRIAN DAVID KELLY did drive to Westercommon Road, Glasgow, in an attempt to find and shoot him;

(e) on 22 July 2004 at Flat 1/1, 18 Niven Street, Glasgow and elsewhere you ROBERT MURRAY did repeatedly attempt to obtain a firearm with intent to assault Paul McDowall aforesaid,

and

(f) on 22 July 2004 at Bardowie Street, Glasgow you COLIN MCKAY, ROBERT MURRAY and ROBERT O'HARA did, while acting with another meantime to the Prosecutor unknown, assault Paul McDowall, aforesaid and repeatedly strike him on the head and body with a pole and a baton or similar instruments and repeatedly strike him on the body with knives or similar instruments and did murder him; ...

you ROBERT MURRAY did commit this offence while on bail, having been granted bail ... ".

Robert Murray ("the first appellant") was found guilty unanimously of charge (9) and its subparagraphs (9)(b) and (9)(f). His no case to answer submission in relation to subparagraphs (9)(c) and 9(d) was upheld and he was acquitted of subparagraph (9)(e) by a majority. Each charge of which he was convicted included the bail aggravations referred to in charge (9).

[2] Robert O'Hara ("the second appellant") was found guilty unanimously of charge (9) and its subparagraph (9)(f), and by a majority of its subparagraph (9)(a). He appeals on certain grounds against his conviction in respect of all the charges of which he was convicted including those referred to below. On other grounds he appeals only against his conviction on subparagraph (f) of charge (9).

[3] The first appellant was also convicted, by a majority, of the assault to severe injury and attempted murder of James Elder, an associate of the deceased, on 5 June 2004 (charge (8)). He appeals only against that conviction.

[4] Both appellants were convicted of a charge of being concerned in the supplying of diamorphine, in contravention of the Misuse of Drugs Act 1971, section 4(3)(b), and of various contraventions of the Firearms Act 1968 arising from their possession of a significant amount of firearms and ammunition.

[5] The second appellant was acquitted of a charge of attempting to pervert the course of justice (charge (13)). That charge alleged that he had, while acting in concert with his girlfriend, the former co-accused Michelle Maxwell, approached Barbara McKinley, the sister of the Crown witness George McKinley, and offered her £10,000 to persuade McKinley not to give evidence against him.

Background

Relationship between the appellants, the deceased and James Elder

[6] The deceased was 25 years old and lived with his parents, Patricia and Stephen McDowall, in a high-rise flat in Westercommon Road, Possilpark, Glasgow. His sister, Deborah McDowall, was the girlfriend of Douglas Mills. The Crown case alleged that the second appellant, the leader of a criminal gang which included the first appellant, had become involved in a long-running dispute with Mills. The deceased had become embroiled in this dispute because of his sister's connection with Mills. James Elder also knew Mills.

The neighbourhood

[7] To understand the Crown case against the second appellant, it is important to give a description of the neighbourhood. Possilpark is an area in the north of Glasgow. Bardowie Street there runs in an approximately east to west direction. At its western limit it becomes Ellesmere Street, and turns to run south. Close to that point, Ellesmere Street forms a junction with Westercommon Road, which runs west away from it. It was around that point that the deceased was murdered. The east end of Bardowie Street intersects Saracen Street, which runs in a north to south direction, at a point known as Saracen Cross. Almost mid-way between these two points Bardowie Street forms a junction with Burmola Street, which runs south away from it. Tenement flats on Bardowie Street, where the witness Theresa Simpson lived, and Burmola Street, where the second appellant's grandmother lived, share a common back court. Midway along Burmola Street, it forms a junction with Auckland Street, which runs east away from it before curving south almost exactly parallel to Bardowie Street and Ellesmere Street. One can gain access to Auckland Street from the common back court behind Mrs Simpson's flat. Walking east along Auckland Street away from Burmola Street, one comes to a small concealed lane, bounded on each side by houses and leading north to Bardowie Street close to the point where the deceased was murdered.

The deceased's movements prior to the murder

[8] From around 4pm on 22 July 2004 the deceased had been drinking at the Saracen Bar, Saracen Cross, with his friend Brian Holliday. He was wearing a blue panelled track suit. CCTV footage showed that, between 7.17 and 7.23pm, he was involved, in the vicinity of Saracen Cross, in an altercation with Samuel Maxwell, the brother of Michelle Maxwell. The deceased's father was notified, collected him by car from the Saracen Bar and took him home. Upon his return, the deceased appeared agitated and spoke about the altercation. However, he remained at home only until around 7.45pm, when he returned to the Saracen Bar, telling his father, "They are not dictating how I live my life". Holliday later decided to accompany the deceased when at about 9pm he began to make his way home on foot.

The deceased's murder

[9] Just after 9pm the deceased was attacked by two males. According to Holliday the attack took place around 20 to 30 yards from the lane linking Auckland Street to Bardowie Street, and around 200 yards from the deceased's home. The attackers appeared "from nowhere" and, without warning, "bumped into" the deceased, causing him to fall on his back, before one of them stabbed him repeatedly with a knife. The other attacker also appeared to be carrying a knife. Both attackers then ran away. The deceased's mother, who witnessed the attack from her bedroom window, saw two males, one of whom attacked the deceased from behind, striking him on the head. She then ran out of the house to find the deceased collapsed in the street. Neither witness at the trial identified the assailants, although Holliday, at a prior identification parade, had identified the co-accused Colin McKay as being similar to the man who had stabbed the deceased. The pathologists' examination revealed sixteen wounds to the deceased's body. These included three stab wounds which were the cause of death through blood loss.

Crown Case

Introduction

[10] The Crown case was that, as a result of their ongoing feud with him, the second appellant and his associates had targeted the associates of Mills, and, in particular, had conspired to target the deceased, all in a campaign of intimidation, violence and ultimately murder. It was contended that this had finally led to the second appellant ordering the co-accused McKay and another unidentified male, in discharge of a drug debt, to murder the deceased. In outlining the Crown case, it is helpful to place the summary of the attempted murder of James Elder by the first appellant (charge (8)) in the wider context of this conspiracy, as the Crown assert that it forms part of the circumstantial case against the second appellant. It is also to be noted that the co-accused McKay was at the trial convicted unanimously of the murder of the deceased. He does not appeal against that conviction.

Evidence of the relationship between the second appellant and his associates

[11] Evidence was led about the background of the second appellant and his associates, the activities in which they were involved and his position in the criminal gang. Most of this evidence came from the Crown witnesses George McKinley and David Hughes, who themselves had formerly been criminal associates of the appellants. Their evidence was to the effect that the gang was involved in dealing in drugs, laundering money, the possession of firearms and acts of violence. The second appellant was the head of the gang and got much of the profit from the sale of the drugs. The first appellant was his close friend and "right hand man". Samuel Maxwell was also involved in the sale of drugs and was treated by the second appellant like a brother. The second appellant was very wealthy: he drove expensive cars, owned a number of properties, including a penthouse flat in a new development in Glasgow city centre, and was seen handling large quantities of cash. Both witnesses spoke to the feud which had developed between the appellants and Mills.

[12] The second appellant secured others to deal in drugs on his behalf, under the instruction of the first appellant, and to store money, firearms and ammunition which belonged to him. The co-accused McKay stored a sawn-off shotgun in a "Possil YM" football bag at his home in Niven Street, Maryhill, Glasgow. Some of the drugs and firearms belonging to the second appellant were found on 4 August 2004 at a house in Millcroft Road, Cumbernauld, rented in the name of McKinley. Prior to their discovery McKinley had been remanded in prison, and had contacted both appellants by telephone in an attempt to have these items removed. Their conversations were recorded on tape by the prison authorities and the Crown lodged these recordings as productions. On 11 August 2004 McKinley was detained by the police following the search at Millcroft Road. It being apparent that the appellants had not helped him, McKinley decided to assist the police. The judge who sentenced him in respect of his part in the possession of the drugs and firearms was made aware of that assistance. He received a custodial sentence of 4 years. Both he and the witness Hughes were placed on the witness protection programme.

The attempted murder of James Elder (Charge (8))

[13] James Elder, the complainer in charge (8), also lived in the flats at Westercommon Road. He was attacked by a group of males on 5 June 2004 close to those flats. He had been drinking in a pub near Saracen Cross and was making his way home via Bardowie Street. The circumstances of the assault on him are described in paragraph [45] below.

[14] McKinley and Hughes each gave evidence that the first appellant had subsequently made admissions separately to them of his involvement in that assault - see paragraphs [46] and [47] below.

Prior incidents involving threats to the deceased

[15] The deceased had told a number of witnesses about previous threats to his life in the months before his murder. On 13 July 2004 he had visited his general practitioner and explained that he was suicidal, rarely left the house and that people were trying to shoot him. He had told his mother of two incidents: one in which he had been at a party when the co-accused Brian Kelly, wearing a balaclava, had chased him with a gun; and the other in which he had been in a car at Saracen Cross when the second appellant had attempted to attack him with a knife. He had also told his father about these incidents.

[16] The deceased's father also spoke to being present when the deceased received phone calls from the first and from the second appellant and to receiving some of them himself. During one of these calls the second appellant threatened the deceased's father stating they had "done" his car and would "do" him. The witness also spoke to getting a call from the deceased and being told that there was a bit of trouble at Sighthill Bowling Club (cf. charge (9)(c)). The witness drove there to collect the deceased and saw the witness McKinley and another male. When they saw the deceased's father, they drove away.

[17] The incident at Saracen Cross was witnessed by the deceased's girlfriend, Elaine McVey, and by McKinley (cf. charge (9)(a)). The deceased had been in a parked car. The second appellant repeatedly banged on a window of the car with a knife and threatened the deceased.

[18] In February or March 2004, when the second appellant was in prison, McKinley saw the first appellant at a car wash in Keppochill Road in possession of a sawn-off shotgun (cf. charge (9)(b)). Others, also armed, were present. The first appellant telephoned the deceased asking him to come to the car wash. In the event he did not come. The group had also driven to Westercommon Road, the first appellant indicating that he was going "to blast" one of the McDowalls.

[19] McKinley admitted having been involved in the incidents at Sighthill Bowling Club and the party the following day (cf. charges (9)(c) and (9)(d)). These incidents had taken place sometime after the incident at the car wash. The first appellant, with the assistance of Samuel Maxwell, had made arrangements for McKinley to drive the co-accused Kelly to the bowling club to shoot the deceased. The first appellant had given Kelly the sawn-off shotgun which was contained in the "Possil YM" football bag. After arriving at the bowling club, McKinley had panicked and driven away. The following day, the first appellant again contacted McKinley and Kelly. All three drove to Bardowie Street near where the party was taking place. Kelly had the bag containing the gun. When they arrived, Kelly put on a balaclava and got out of the car. The first appellant said, "I want to hear the bang to make sure it is done". Kelly returned to the car and said that he had chased the deceased, who had got away. The first appellant was angry. They drove to the deceased's house and the first appellant, on seeing the deceased, said he would shoot him himself, but did not do so. The bag and gun were put back in a cupboard in the co-accused McKay's house. Kelly also made admissions about this incident to Hughes.

[20] McKinley and the first appellant had visited the second appellant at Kilmarnock prison following the car wash incident. On hearing about it, the second appellant was angry, telling the first appellant to "sort it out". McKinley had also been present at the prison when the first appellant had reported to the second appellant the attempt on the deceased's life by the co-accused Kelly. The second appellant had laughed, calling them respectively "dumb" and "dumber", and responded that he would "get it sorted" and that the McDowalls "would learn". The second appellant also stated that the McDowalls would only respect him when one of them was "nipped", a term which McKinley took to mean "killed".

[21] Hughes spoke to an incident involving the second appellant a few weeks before the deceased was murdered. They had been in a car in the Maryhill area of Glasgow, when the second appellant had said, "Whoa, whoa, stop the car", then, "I thought that was Paul McDowall". He then said, "I would pop one on any of them no bother down this end". The witness took "pop" to mean "shoot".

The movements of the appellants and their associates on the evening of the murder

[22] Hughes was in Niven Street, Maryhill with the co-accused McKay on the evening of the murder, when McKay received a phone call, which, from his demeanour, Hughes assumed came from the first or the second appellant. The Crown lodged phone records which demonstrated, among other things, that, shortly after 7.30pm the first appellant called the co-accused McKay, who then called the second appellant at 7.34pm. Hughes heard McKay say, "Why what's wrong, what do you mean, what taxi?", and, "Who's going to pay for this taxi, I don't have any money?" McKay eventually left in a taxi. Joseph McKay (no relation), a taxi driver, spoke to picking up two adults, one of them male, in Niven Street after a call was received at 7.53pm. He dropped them both at Balglass Street, Possilpark (where the second appellant's aunt, Linda Brown, lived), about 5 - 10 minutes walk from Burmola Street. A woman came out of a house in Balglass Street and may have paid the taxi fare.

[23] At 8.23pm, following his altercation with the deceased, CCTV footage showed Samuel Maxwell in Closeburn Street, a short distance from Saracen Cross, entering a taxi later established as belonging to Ronald O'Hara, the second appellant's cousin. Excluding the driver, there were two other people in the taxi when Maxwell entered it. In their evidence at the trial both appellants accepted being in that taxi, along with Maxwell, at that time. CCTV footage showed that the taxi was then driven to Balglass Street, a journey of less than a minute, and stopped close to its junction with Westercommon Road, before turning round and driving back up Balglass Street some five minutes later. It was out of view of CCTV cameras for some of this time.

[24] Between 8.03pm and 8.55pm the first appellant called Hughes seven times, and the co-accused McKay twice. During the calls which he made to Hughes, the first appellant appeared panicked and aggressive, and asked for his "working bag", which Hughes understood to be the bag containing guns. Hughes could hear the voice of the second appellant, shouting or speaking loudly. He thought that this would have been during the first or second call, which took place at 8.03pm and 8.39pm respectively.

[25] At 9.11pm, the co-accused McKay called the second appellant's mobile phone. Hughes called the first appellant at 9.12pm, who told him that the bag was no longer needed. At that time CCTV footage showed Samuel Maxwell and the two appellants walking from Bardowie Street towards Saracen Cross. They then briefly walked back towards Bardowie Street and stopped. The first appellant appeared to be using his mobile phone. The second appellant gestured to a vehicle, later confirmed as belonging to Maxwell's uncle, James Taggart, which performed a U-turn before all three men entered it and it drove in the direction of Glasgow city centre. The appellants were also seen in that area by Elaine McVey, who noted that they were looking up Bardowie Street, towards Westercommon Road. After the murder, neither appellant used these mobile phones again.

[26] Having been told about the assault upon his son, Stephen McDowall ran in the direction of Ellesmere Street, where the assailants had been seen to head. He found the co-accused McKay, who was armed with a knife, and an unidentified male, who was armed with a metal bar. Along with friends of the deceased, he attacked the co-accused McKay, who sustained serious injuries and required hospital treatment. Stephen McDowall threw the knife that the co-accused McKay had been carrying into a garden nearby. It was later recovered. It was established in evidence that on it there was the blood of each of the co-accused McKay and the deceased. The injuries which the deceased sustained and the shape of cuts in a track suit top worn by him were consistent with that knife having been used to stab the deceased.

Events following the murder

[27] A few days after the murder Hughes spoke with the first appellant, who appeared unhappy that the co-accused McKay had not been in touch. Referring to Mills and his associates, Hughes said, "I don't think they knew how serious all this stuff was", to which the first appellant replied, "So, well, they know now". Referring to the incident with the complainer Elder and the murder, Hughes said, "That's twice now you've gone up there and done a lot of damage, that's one person dead and another in Glasgow", the latter reference being to Elder who was in hospital. The first appellant responded, "Aye and the other one should be dead as well".

[28] On 9 and 10 August 2004 the co-accused McKay gave a number of statements to the police in which he admitted being involved in the murder, although he blamed the unknown male for the assault itself. He stated that he had been ordered by the second appellant shortly before the incident to "hurt" the deceased. That order, according to the statements, was given in the back court of a tenement in Bardowie Street. He gave evidence at the trial but there denied that this statement was true, claiming he had been told what to say by the police. McKinley gave evidence that, while on remand on the murder charge, the co-accused McKay had admitted stabbing the deceased, again claiming that he had been told to do so by the second appellant in payment of a debt. The plan had been to shoot the deceased, a gun being available, but it became too late to do so. While the statements were not taken in the presence of the other co-accused, the Advocate depute's position before us was that, in the context of a case involving a common criminal purpose, they did provide evidence that the co-accused McKay was acting under instruction.

[29] From 10 to 25 August 2004 the second appellant was on holiday at a five star resort, in Cancun, along with the former co-accused Michelle Maxwell. The holiday cost £5,840 and had been booked on 15 July 2004, and paid for in cash. He was joined there by the first appellant and Samuel Maxwell.

Theresa Simpson

[30] Mrs Theresa Simpson was described by the trial judge as an "important though somewhat curious witness". She was a telephone operator, but also gave her occupation as "psychic"; she was, she said, commonly known as "Emerald". She testified that on the evening of the murder she had been at a rear window of her house in Bardowie Street when she heard the sound of men's voices coming from the back court behind her tenement. She looked out and saw a group of about five men. One, "the boss", was screaming, demanding that they "get him". He was shouting at two of the others, "Go and get him". He ran to them and said "Everything will be all right". One had a large head. The other was pale and streaky, had dark hair and was referred to as "Colin". He was agitated and upset. The leader said, "We've got to get him - it's sorted" to Colin and the other man. He moved his hand back and forward. Two other men, who were sun-tanned, were told, "Go now. Ring me on my phone" and, "When you get him let me know". He also said, "He's wearing blue - like this", referring to an item of his own clothing. The two sun-tanned men then went towards Auckland Street. The leader marched up and down with his phone. The remaining males stayed for some time, before leaving. They walked up towards "the cottages" (further along Bardowie Street) and spread out, as if searching for somebody. They were waving their arms about and shouting a lot. The witness wrote what she was observing on an envelope. When she heard about the murder, she approached the police with this information. When asked if she could identify anyone in court she said, "Definitely not".

[31] The witness put the incident which she had observed at about 6pm or shortly thereafter. That was the time given in her police statements, in which she also named various individuals whom she said she had visited in the neighbourhood after the incident (see paragraph [56] below). In her evidence she spoke of youths throwing stones outside her home shortly before that time. In examination-in-chief, the Advocate depute put to her repeatedly that she may have been mistaken about the time, which she initially denied. The trial judge then intervened stating:

"Either there were two such incidents. One that happened at eight o'clock and one that happened at six o'clock....or you're mistaken about the time which you saw these matters, or, the third possibility is that you're not telling the truth here. Now which is it? Were there two such incidents, are you mistaken about the time, or are you not telling the truth?"

In response the witness accepted that she may have been mistaken about the time.

The appellant's remarks at the time of his detention

[32] Upon his return from Cancun the second appellant, who by then was also accompanied by Samuel Maxwell, was met by police officers, including Detective Sergeant Graham Cordner, at Glasgow Airport. He was informed that a warrant had been issued for his arrest in respect of the deceased's murder. After being separated from the rest of the group, and while waiting for his baggage, the appellant stated, "If you're looking at me for the murder, wee Sammy's got no previous. He'll get four years for culp. hom.". He appeared "laid back" at this stage. His baggage was then searched and cash amounting to £2,535 and $2,702 found.

[33] The second appellant was then taken to Maryhill Police Office and interviewed under caution. He claimed to be employed as a car valet and that he lived in Possilpark, but stated that he did not wish to answer any questions. He was then cautioned and charged with the murder of the deceased, in terms in which it was alleged that he had acted along with the first appellant and others, and that he and the first appellant had previously evinced malice towards the deceased. Initially, the second appellant indicated that he did not understand the charge. DS Cordner explained what was involved in the alleged assault, and what the phrase "previously evince malice" meant. The second appellant then indicated that he understood the charge, but did not wish to make a reply. While he was waiting to have his fingerprints taken, the second appellant again queried what he had been charged with, asking if it was being alleged that he had been present at the murder. DS Cordner indicated that he was not willing to discuss the issue further, stating that a list of witnesses would be sent in due course and that his lawyer would have access to the relevant information. At that point the second appellant asked, "What like if I ordered someone to do it?" DS Cordner then asked, "Did you?" He replied, "Naw, Naw".

Defence Case

The first appellant

[34] The first appellant gave evidence on his own behalf. He admitted having known the second appellant all his life. He had been with him on the day of the murder, when they had gone to Falkirk, in the taxi driven by Ronald O'Hara, to look at houses. They had arrived back in the Possilpark area at about 6pm, had driven around for a while and then picked up Samuel Maxwell near Saracen Cross. They had not been in the back court behind Mrs Simpson's house. He denied any involvement in the murder.

The second appellant

[35] The second appellant also gave evidence. He claimed that he resided in Burmola Street, along with his grandmother. He admitted that he was "brought up with" the first appellant. His account of his movements that day corresponded with that of the first appellant. He denied having been in the back court behind Mrs Simpson's house. He accepted that he had received calls from the co-accused McKay at 7.34pm and at 9.11pm that night: he claimed that in the first McKay had asked if he wanted to go hunting, and in the second the phone simply cut off. He denied making the comment at Glasgow Airport, attributed to him by DS Cordner, although that evidence had not been challenged by his trial counsel. He accepted the comments attributed to him at the police station, but indicated that they were said in the context of the police having suggested to him that he had sent someone to commit the murder. He denied any involvement in that murder, or that he was involved in a dispute with the deceased.

[36] During his cross-examination of Mrs Simpson trial counsel for the second appellant highlighted her evidence that the incident she said she had witnessed in the back court took place at about 6pm, and, as a point of reference, asked her about the various individuals whom she had visited after the incident.

Procedural issues at trial
The recordings of the witness McKinley and the appellants
[37] During his cross-examination of McKinley, trial counsel for the second appellant sought to play all of the tapes containing the recorded telephone calls made by that witness from prison. Sections of some of these tapes had already been played by the Advocate depute during the witness's examination-in-chief. The tapes had been audible when listened to by transcribers through headphones, but difficulties were experienced in the court room, where the tapes were played to the jury by means of a cassette player placed in close proximity to a microphone. Transcripts of the recordings had been prepared, but were not initially distributed to the jury. Towards the end of the day's evidence on Friday 1 April 2005, and after allowing trial counsel to play a number of these tapes, the trial judge intervened in this exercise when the tapes became more difficult to hear. He asked trial counsel what the jury were to make of the previous hour of evidence, given that they had not been supplied with transcripts. During the exchange which followed, counsel offered to provide the jury with the transcripts, but indicated that it was his intention to continue playing the tapes. The trial judge was not content with that approach and suggested, repeatedly, that the exercise had been "a waste of time" and that he was "sure the members of the jury don't want to listen to these tapes again". When trial counsel again indicated that he intended to play the tapes, the trial judge refused to allow him to do so, stating, inter alia:

"Well I'm not going to let you....I'm sorry. At this stage, I'll reconsider my view on that matter over the weekend, and I'll hear you further if you wish.... Don't argue with me at this stage, you can argue with me on Monday".

The whole of this exchange took place in the presence of the jury, whom the trial judge then addressed, indicating that counsel could revisit the matter again when the court resumed, but that, given the difficulties in hearing what was being said, the exercise was "a particular waste of time".

[38] According to the court minutes, on Monday 4 April 2005, in the presence of the jury, trial counsel informed the Court that he had transcripts of further tape recordings available for the jury and intended to play additional tapes. The trial judge indicated that he did not see the value in such a course, as so many tapes had already been played without transcripts and the evidence was of little value to the jury.

Counsel then addressed the judge further outwith the presence of the jury. He submitted that all the tapes should be played to ensure the whole context of the conversations was made known to the jury, or, alternatively, that the transcripts could be discussed in full with the witness. The trial judge refused to allow further tapes to be played, but allowed any such questions as counsel deemed appropriate to be asked by reference to the transcripts.

Juror's excusal

[39] On 26 April 2009, during the last week of the trial, information relating to a particular member of the jury was relayed to the trial judge, in chambers, by the Advocate depute in the presence of counsel for the accused. The information was to the effect that the juror in question had been approached and offered a substantial bribe in return for influencing the other members of the jury. Thereafter, the Court, on the unopposed motion of the Advocate depute, excused the juror in question in terms of section 90(1) of the Criminal Procedure (Scotland) Act 1995. Further discussion took place in chambers regarding the need to keep the remaining members of the jury secluded in terms of section 88(8) of the 1995 Act. It appears that a motion to that effect was made by the Advocate depute, to which all counsel objected. Nonetheless, the trial judge made an order for seclusion. On the trial resuming the trial judge made the following comments to the jury:

"I'm sorry for the inconvenience Ladies and Gentlemen, I really am, but I'm afraid it's necessary in the circumstances, and you will come to realise why, if you don't already know [indecipherable] in your own minds after the trial is over...".

He again addressed this issue in his charge to the jury, when he gave the following directions:

"Again you should put out of your minds entirely anything which has been said to you in the course of this case by the gentleman who was excused from your number. I am sure you will have understood why. There was some suggestion that some improper influence was brought to bear upon that person and therefore if he has attempted to influence you in any way you should ignore what he has had to say to you"

The first appellant's appeal

Submissions for the first appellant

[40] Mr Finnieston submitted that the trial judge had misdirected the jury and that this had resulted in a miscarriage of justice in respect of charge (8). It was conceded that both of the first appellant's admissions could be construed as involving special knowledge and that, taken together, they were to the same effect, evidentially, as an admission of that kind made in the presence of two witnesses. In those circumstances careful directions were needed, given the specialities of the law of hearsay and corroboration which were involved. General directions were given about the rule against hearsay and about the exception which applied to statements made by an accused, but the jury were not informed of the following: that an accused is only one source of evidence and that any admission by him requires corroboration; that a special knowledge admission contains information that an accused could only know due to his being the perpetrator of an offence; that, before accepting such an admission, they were required to find that that information was borne out by the other evidence. Moreover, the need for the making of such an admission to be corroborated, particularly where, as in the present case, the statements were made on separate occasions, was not addressed. The jury had been left uninstructed as to how to approach their deliberations. There was a very real danger that the jury had reached their decision on the guilt of the appellant on an incorrect basis. Mr Finnieston was not aware of any other case where reliance was placed on special knowledge admissions, but where no directions had been given to the jury.

Submissions by the Advocate Depute

[41] In reply, the Advocate depute presented three submissions. Her primary position was that the jury did not require specific directions on the statements attributed to the first appellant. She conceded that these were significant, and had been expressly referred to in her speech to the jury as "special knowledge confessions", but submitted that there were other incriminatory facts and circumstances on which the Crown had relied: the ongoing feud between the first and second appellants and their associates on the one hand and, on the other, Douglas Mills and his associates, who included the complainer and the deceased, as well as the history of violence directed against the deceased; the first appellant's incriminatory comments about the assault when discussing this feud; the arrangements he made after the assault for McKinley, a known criminal associate, to pick him up at Langbank, some distance away, and to take him to the house of the co-accused McKay, another known criminal associate, rather than returning to his own home, giving rise to an inference that he had gone into hiding; and the eye-witness description of an attack by mature-looking men, rather than a young gang, which fitted with the appellant being involved. That evidence, taken along with the powerful admissions made by the first appellant, even absent corroboration of the special knowledge, provided a sufficiency. Her second submission was that, even if such a direction had been required, it would not have been to the first appellant's advantage (cf. Low v HM Advocate 1993 S.C.C.R. 493, per Lord Justice Clerk Ross at page 509). The first appellant had been able to confirm when and where the attack had taken place, that he was one of a group of people involved, that it had involved a stabbing, the nature of the wounds inflicted and the involvement of Ian McKay. His admissions had to be seen against the evidence already highlighted in her first submission. In these circumstances, the absence of relevant directions actually helped the first appellant: it prevented all of the incriminatory factors being highlighted to the jury. The final argument put forward by the Advocate depute was that the principal question which one had to address was whether there had been a miscarriage of justice (cf. Mitchell v HM Advocate 1996 S.C.C.R. 97, per Lord Justice Clerk Ross at page 99). Standing the facts and circumstances of the present case, particularly the compelling nature of the admissions made, that could not be said.

Discussion

[42] In Low v HM Advocate it was held that there is a distinction, as regards corroboration, to be drawn between an admission which forms only one element in the Crown's proof of guilt and a "circumstantial" or "special knowledge" admission which, with proof of the relevant circumstantial elements, is in substance the sole basis for proof of guilt. In the former case the admission may be spoken to by only one witness; in the latter the making of the admission requires to be proved by two witnesses (pages 509-10). In that case the Advocate depute, who himself maintained that the trial judge's directions were flawed, is recorded as having recognised "that there may be an exception where two separate special knowledge admissions were made to different people at different times" (page 509F-G). The court does not expressly deal with that "exception" but its language ("He recognised") suggests that it agreed with the Advocate depute's position. We agree that special knowledge admissions may be proved in that alternative way.

[43] In the present case there were two separate admissions said to have been made by the first appellant to different individuals (McKinley and Hughes) at different times. It was accepted before us that, in so far as these were relied on as circumstantial admissions, it was necessary that the jury accepted the evidence of both McKinley and Hughes on that matter; acceptance of only one of them destroyed the value of the admissions as themselves the basis for sufficiency of evidence.

[44] In her address to the jury the Advocate depute, as might have been expected, relied, in her case against this appellant on this charge, very heavily on the admissions made by the first appellant to McKinley and Hughes. Before us she acknowledged that these admissions were "a significant part of the Crown case". She demurred, however, to the suggestion that there was a need for the trial judge to give to the jury a direction as to how to approach circumstantial admissions. We are unable to agree. An admission can be an important element in a Crown case. Where it is claimed to be circumstantial in character and is relied on as such, it is necessary that the jury be alerted to the legal requirements that the making of such an admission of guilt be spoken to by more than one witness and that additionally there be circumstances external to the admission which are capable of confirming its truth. Otherwise, there is a risk that the jury, while accepting only one of the witnesses to the admission, may proceed to return a guilty verdict on the basis of the single witness speaking to it, combined with circumstantial confirmation. Further, there is a risk that, unless expressly instructed to the contrary, the jury, having heard and accepted evidence from two separate witnesses of an admission by the accused, may assume that that evidence, without more, is sufficient to convict. A specific direction is appropriate to the effect that, the ultimate source of each statement being the accused himself, that constitutes only one source of evidence. The trial judge gave to the jury no directions on the use of a circumstantial admission, far less where the admission was on separate occasions to different witnesses. That constitutes, in our view, a misdirection.

[45] It remains to consider whether, as a result, the first appellant suffered a miscarriage of justice in respect of his conviction on charge (8) - he does not appeal against his conviction on any other charge. The particular circumstances of charge (8) must be seen against the wider background established in this prosecution. The first appellant was, in effect, the second in command of a criminal faction headed by the second appellant and having its activities largely in Possilpark. That faction had a long-standing feud with Douglas Mills and those associated with him. James Elder, the complainer on charge (8), may have been such an associate. The assault on Elder which occurred in Westercommon Road, near his home, was witnessed by two residents from their home in the Westercommon flats. There were four or five assailants. One of the residents described them as being like grown men rather than teenagers. The first appellant was then in his mid 20s. Elder was brought to the ground where he was punched and kicked. He was also stabbed several times by one of the group. On being admitted to hospital it was found that two of the knife injuries were severe and had penetrated the lung, while the others were not so serious. Elder also had injuries to his head which could have been caused by a blunt instrument such as a wooden baton. Such a baton was in the event recovered near to where Elder had been attacked. On analysis of a sample taken from its surface a DNA match was made with that of a man, Ian McKay, unrelated to Colin McKay charged in this indictment. Ian McKay was related to the second appellant.

[46] According to McKinley's testimony, later that night the first appellant described to him the attack on Elder. He said that he, Ian McKay and others (about four or five in all) had come upon Elder in the street and chased him. Elder had slipped and fallen near his home and been held down by the group. A knife had been got. The first appellant stated that he had stabbed Elder "in the lung a couple of times".

[47] Hughes testified that the following night he, the first appellant and Colin McKay were walking a dog by the canal. In conversation the first appellant said, "You'd better watch out down here. You might see Dougie Mills and Gibson down here looking for a lung for Jim Elder." (Gibson was another associate of Mills.) In response to a question from Colin McKay, "How many times did you get him?", the first appellant replied, "Twice and one shitey one".

[48] Each of these admissions was highly circumstantial. They were also substantially consistent with each other - in particular in relation to the location and number of the more serious wounds, matters confirmed by Elder's testimony and that of the doctor who treated him in hospital. The admission to McKinley involved further circumstantial elements - the location of the attack, the approximate number of the assailants and the involvement of Ian McKay - all circumstances spoken to independently. However, while these independent elements, when taken with the terms of the admissions, were sufficient, if accepted, to give the admissions a "special knowledge" character, they did not in any other context corroborate the identity of the first appellant as one of Elder's assailants.

[49] The only evidence on which the Advocate depute sought to found as being corroborative was the background of the feud between the O'Hara and the Mills groups, the circumstance that after the attack on Elder the first appellant was "hiding at Colin McKay's house" and the age group of the assailants. While the background of the feud was relevant, it was not sufficient to corroborate an admission by the first appellant to a single witness that he was an assailant. As to his "hiding" at the relevant time, Hughes's evidence that he was so hiding was plainly hearsay ("George McKinley had told me ... that") and McKinley did not in the event speak himself to that matter. The vaguely expressed age group of the assailants goes very little distance to implicating the first appellant as one of them. Nor can these factors taken in combination provide, in our view, sufficient corroboration in the conventional sense.

[50] In short, in order to convict the first appellant of this charge the jury required to accept as credible and reliable (a) McKinley's evidence of the first appellant's admission to him, (b) Hughes' evidence of the first appellant's admission to him and (c) evidence of facts and circumstances which gave each of these the character of special knowledge admissions. The jury received no guidance whatsoever on this matter. It is impossible to know whether they approached this aspect of their task on a sound legal basis. In the absence of appropriate guidance to the jury the first appellant suffered in this respect, in our view, a miscarriage of justice. His conviction on charge (8) must accordingly be quashed.

The second appellant's appeal

Submissions for the second appellant

Grounds 1(a) and 1(b) - an unfair trial

[51] Mr McBride presented two submissions in support of the first ground of appeal, which concerned all of the charges on which the second appellant was convicted. The first (ground 1(a)) was that his right to a fair trial had been undermined by the trial judge's refusal to allow trial counsel to play the remainder of the tape recordings of the telephone calls made by McKinley. This first submission raised two issues: the judge had dealt with the matter in a peremptory manner and an intemperate exchange had taken place before the jury. Trial counsel had also sought to provide context to the conversations, by contrasting the tone adopted by McKinley when speaking during these calls to his associates with his demeanour in the witness box - although Mr McBride could not confirm whether the second appellant's tone in the tapes which had not been played differed from that in those which had. The recordings were the primary evidence in the case and were Crown productions. There had been no intervention when the Advocate depute had conducted a similar exercise. It was right for a trial judge to deal with problems identified during a trial. However, the matter could and should have been dealt with by putting the jury out and exploring with counsel ways of overcoming the problem presented by the poor quality of the recording in some of the tapes. The judge's reaction had not been proportionate: he had given the impression that he had simply run out of patience (Murray v Watt 2002 S.C.C.R. 122; Bullock v HM Advocate 1999 S.C.C.R. 492; cf. Dye v HM Advocate 2008 SCCR 693). Mr McBride highlighted in particular the repeated references by the judge in the presence of the jury to trial counsel having "wasted time". A reasonable observer would have come to the conclusion that the judge had not been impartial; justice had not been seen to be done. This was an unwarranted and improper interference with matters which fell entirely within trial counsel's discretion: he had been prevented from asking questions of an important witness in the manner that he felt appropriate.

[52] The second submission (ground 1(b)) was that the trial judge's comments about the juror's excusal constituted a misdirection. Mr McBride submitted that the effect of those comments had to be considered in light of the background circumstances: the trial involved serious allegations about drug and gang culture, witnesses on the witness protection programme, and allegations of bribes and of general intimidation. For at least part of the trial jurors reported to a police station and were then taken to court. Additional police officers, some armed, were in attendance. The Crown case also suggested that it involved dangerous individuals. There was no objection to the general directions, at the time of the jury's seclusion, about not speaking to anyone, including the excused juror. However, the comment that they would "come to realise why if [they] hadn't already" invited speculation. The comments in the charge about the alleged "improper influence" caused even greater concern. Mr McBride accepted that some form of explanation for the excusal was warranted and that there were no standard directions. However, a judge should approach the issue with the utmost restraint; his directions should not give rise to prejudice or invite adverse speculation. While, in his report, the judge indicated that he was "careful not to suggest that any of the accused were involved", Mr McBride submitted that he had, in fact, left the issue entirely open to speculation. Given the background, the obvious conclusion for the jury was that the second appellant or his associates had attempted to influence the verdict. Mr McBride submitted that it was not necessary to establish actual prejudice: one had to consider what a reasonable person looking at the proceedings would think. Nevertheless, there was actual prejudice in the remarks made. While the comments were potentially prejudicial to each accused, the Crown's position was that the second appellant was the leader of the criminal gang: if the jury were to speculate as to who had orchestrated the "improper influence", it was more likely to have been him. Mr McBride was not aware of any relevant authorities dealing with the unique circumstances of the case.

[53] The cumulative effect of the trial judge's conduct had been to render the trial unfair.

Grounds 2(a) and 2(b) - misdirection by omission

[54] The second appellant's next ground of appeal concerned the absence of certain directions in the trial judge's charge to the jury; it related only to charge (9)(f). First (ground (2)(b)), they should have been directed that the comments made by the second appellant at the time of and shortly after his apprehension could not be construed as admissions of guilt, or, if either of them could, that the jury required to be satisfied that it did, in fact, amount to such an admission. Mr McBride submitted that the trial judge had not addressed the evidence in any real detail, despite the length of the trial. Notably, the jury were directed that an admission of participation in a crime was "very strong evidence" against the person who made it. No directions were given on other pertinent issues, such as special knowledge or mixed statements. More importantly, the trial judge had not indicated, as a matter of law, which of the second appellant's statements might be construed as an admission of guilt, or how one was to approach that issue. In her speech to the jury, the Advocate depute had submitted that the statement made by the second appellant at the police station was an "admission", while that made at the airport was "equivalent to an admission". In his speech, counsel for the second appellant rebutted both of these suggestions. While the nature of a statement was ordinarily a matter for the jury's determination, the appellant's statement at the airport could never amount to an admission of guilt: it concerned Samuel Maxwell, whom the Crown never alleged was involved in the murder. Appropriate directions should have been given to correct the Advocate depute. Mr McBride accepted that the statement at the police office was capable of an incriminatory construction. However, the jury should have been directed to consider the remarks in the context of the whole evidence and of the submissions of counsel before deciding whether that construction was appropriate. The trial judge had taken none of these steps. The jury had been left uninstructed as to how to approach this issue.

[55] Secondly (ground (2)(a)), the jury should have been directed that there was insufficient evidence in law to convict the second appellant of subparagraph (f) of charge (9) unless they found Mrs Simpson both credible and reliable. His counsel had asked the trial judge for such a direction in his speech to the jury. In presenting this ground Mr McBride highlighted that the witness's concession that she might have been mistaken about the time only came following an inappropriate intervention by the trial judge. There was no real reason to accuse the witness of dishonesty, her evidence being consistent with her police statement. The Advocate depute had asked the jury to accept that the meeting Mrs Simpson had observed had taken place after 8.25pm, and that it involved the second appellant giving the instruction to commit the murder. However, she had done so by reference to the voluntary statement given by the co-accused McKay, which, Mr McBride submitted, was not admissible evidence against the second appellant. The evidence of Mrs Simpson about that instruction was crucial: without it there was no direct evidence of the instruction being given on the night of the murder by the second appellant; if she was correct that what she observed took place at about 6pm, the Crown case failed. Mr McBride submitted that, following counsel's request, one would have expected the trial judge to have given the direction, or to have told the jury that he did not think it appropriate to do so, providing reasons for his decision. It was incumbent on him to provide appropriate guidance. While Mr McBride recognised the argument that the comment made by the second appellant in the police station, along with the other circumstantial evidence, might provide a sufficient basis for the conclusion that he had given the order, he made no concession in that regard: a direction should have been given that there was no sufficiency without the evidence of Mrs Simpson.

Ground 3 - "non-disclosure"

[56] The second appellant's third ground of appeal concerned the failure by the Crown to disclose certain statements and material information. Following his conviction he had instructed new agents, who mandated his client file. In December 2006 these agents wrote to the Crown Office, asking for the police statements of Mrs Simpson and of the people to whom she had claimed to have spoken on the evening of the murder. In February 2008 a second letter was sent. The statements of Joseph Haldane, Angela Haldane, Kenneth McMullin, Lorna McMullin and Carolyn O'Brien were provided by Crown Office in May 2008. In these statements, taken prior to the trial, the witnesses mentioned the people whom they had seen on the night of the murder but, importantly, did not mention Mrs Simpson. Mr McBride informed us that only the statement of Joseph Haldane had been in the client file. In October 2008, Crown Office indicated, by letter, that they had no statement from Eileen Muir. In January 2009 it sent a further letter, confirming that no written statement had been taken from Eileen Muir, but that in an oral communication she had indicated to the police that she did not want to be involved in the inquiry in any way and denied even knowing Mrs Simpson. That information had been in an e-mail sent to the Advocate depute in January 2005, following enquiries which she had instructed in an attempt to resolve what were seen as discrepancies in Mrs Simpson's timing of events. Trial counsel had been asked but could not remember if he had been made aware of the statements or of the information about Eileen Muir. He claimed he would have informed the second appellant's agents if he had.

[57] Mr McBride submitted that, as only one of the witness statements was in the second appellant's file, one could infer that the rest had not been disclosed. He accepted that the Advocate depute's normal practice was to disclose such information. However, she could not specifically recall having done so. It was submitted that, without the statements and the information about Eileen Muir, counsel was at a disadvantage in preparing to cross-examine Mrs Simpson. He had chosen to bolster the credibility of her evidence that the incident she witnessed took place at about 6pm, by questioning her about the time at which she had visited other people. Had he been aware that Eileen Muir denied knowing Mrs Simpson, and that the statements of the other individuals she claimed to have seen made no mention of her, he might, instead, have attacked the credibility or reliability of Mrs Simpson's whole account. At the same time, he could have highlighted that any incident she did see took place at about 6pm, given the time at which she noted children throwing stones. The defence did not have to choose between these approaches: Counsel could have "ridden both horses". While one could not say for sure whether, had he been given the information, trial counsel would have adopted a different approach, Mr McBride suspected that he would have questioned the witness's reliability, if not her credibility. In any event such a difficult decision demanded that he was fully informed before he began his cross-examination, in order that he could properly prepare and conduct the second appellant's defence (McClymont v HM Advocate 2006 SCCR 348, per Lord Osborne at para [11]). In assessing the Crown's duty of disclosure, one had to apply contemporary legal standards. The Crown was in possession of information which was capable of undermining a key witness, and which should have been disclosed.

[58] Mr McBride in conclusion invited us to hold that there had been a miscarriage of justice in the second appellant's case. In doing so he asked us not to look simply at each ground of appeal in isolation, but to consider their cumulative effect. He accepted that, given the passage of time, consideration of the ground of appeal based on non-disclosure presented particular difficulties. Nevertheless, he submitted that there was enough in the remaining grounds to conclude that there had been a miscarriage of justice. He acknowledged that, if Mrs Simpson's evidence was accepted, there was a sufficiency of evidence and that a successful appeal might simply result in authority being granted to bring a new prosecution against the second appellant. He invited us to set aside his conviction.

Submissions by the Advocate depute

Grounds 1(a) and 1(b)

[59] In response to the second appellant's first ground of appeal, the Advocate depute highlighted the difference in parties' approaches to the recorded telephone calls. She had listened to them in advance, and only played audible excerpts, which were directly relevant to the drugs and firearms charges, and which provided an explanation for McKinley's decision to give evidence against the appellants when he feared that he was being set up by his associates. It was understandable that the trial judge had not intervened in that exercise. In contrast, trial counsel had attempted to play them all irrespective of their audibility. The trial judge's intervention was understandable. The jury's difficulties in hearing the recordings required to be addressed. While the subsequent debate could be described as intemperate, and should not have taken place in the presence of the jury, no final decision had been reached at its conclusion. Over the weekend which followed, counsel could have identified relevant sections of the tape. He had not done so and his ultimate proposal involved two alternatives: that he play the remaining tapes; or that he put the transcripts from them to the witness. In allowing the second alternative, the trial judge had enabled counsel to lay a foundation for the line of defence that McKinley was the person responsible for the drugs and firearms, had panicked and had incriminated the second appellant in return for the prospect of a reduction in his sentence. As regards McKinley's tone in the recordings, during his cross-examination trial counsel remarked that this could not be heard but elicited an acceptance from the witness that he had been "uptight". It was, the Advocate depute submitted, unclear what else was to be gained from playing the remaining tapes. Mr McBride had not suggested that McKinley's tone of voice differed substantially in the tapes which had not been played from that in the tapes which had. In his speech to the jury, trial counsel accepted that the trial judge "quite properly" prevented those tapes being played. He had then clearly put forward the defence position. Considered objectively, in the context of the trial as a whole, the circumstances complained of would not create, in the mind of a reasonable observer, a suspicion that the judge was partial (cf. Murray v Watt, per Lord Kirkwood at para [6]). He would have seen that the cross-examination was carried out effectively, resulting in the witness accepting that he was agitated and under pressure. The authorities on which the appellant relied could be distinguished (cf. Murray v Watt; Bullock v HM Advocate). One also had to consider the effect of the judge's decision: if the tapes could not be heard, they could not have had a bearing on the jury's deliberations (cf. Dye v HM Advocate, per Lord Reed at pp 699 - 700, applying Hogg v Clark 1959 J.C. 7). The second appellant's right to a fair trial had not been undermined.

[60] Addressing the second issue raised in the first ground of appeal, the Advocate depute submitted that the directions given at the time of the juror's excusal were understandable. This was a long trial and there had been a clear opportunity for the juror in question to exert some influence. It was incumbent upon the judge to say something to ensure that the verdict was fair. It was, however, accepted that the directions should not have encouraged speculation. As regards the charge, the Advocate depute submitted that the trial judge was entitled to tell the jury why the juror had been excused. That prevented speculation. She highlighted that these directions came directly between others which made clear that the jury's decision had to be reached solely on the evidence which was a matter for them alone. The trial judge did not divulge what the improper influence was: from the jury's perspective it might have been an attempt by others to secure a conviction. Nor did he impute it to any particular party in the case. Indeed, he indicated only that there was a "suggestion" of such influence. It was also relevant to look at the verdicts which the jury returned. Apart from the verdict in relation to charge (9)(a), the verdicts of guilty returned against the second appellant were all unanimous. Interestingly, he was acquitted of the charge which alleged that he had tried to influence McKinley by bribery. The grounds put forward by the second appellant were speculative. Standing the directions and the verdicts which were returned, there was no reason to suppose that the jury would have taken this matter into account in their deliberations, or concluded that, out of all the accused, it was the second appellant who had been responsible. While the judge may have dealt with the matter in an unfortunate manner, he had to address the issue. In doing so he could not be said to have denied the second appellant a fair trial.

Grounds 2(a) and 2(b)

[61] The Advocate depute submitted, first, that there had been sufficient evidence to convict the appellant without the evidence of Mrs Simpson: the direction which had been sought was unnecessary and would have been inappropriate (cf. Touati and Gilfillan v HM Advocate 2008 SCCR 211, per the Lord Justice General (Hamilton) at para [23]). She highlighted the other circumstantial evidence on which the Crown relied, as set out in paragraphs [10] - [33] above, as well as the second appellant's incriminatory remarks. Had the trial judge chosen to provide reasons for refusing to give the direction sought, it would have served only to highlight that compelling evidence. The deceased had been the subject of a co-ordinated, unprovoked assault from behind. There had been no history of ill-will between him and the co-accused McKay. Of itself that suggested a planned attack. The other strands of evidence suggested that the second appellant had been involved in that plan, his statement at the police office being particularly incriminatory. Mrs Simpson had not identified the appellant. While no concession had been made, Mr McBride had at least acknowledged the argument that she was not crucial to the Crown case. The evidence of McKinley and Hughes was far more incriminatory. In any event, it was open to the jury to accept Mrs Simpson's evidence generally, and to infer that she saw the second appellant giving instructions to his companions, while rejecting as unreliable her recollection about the time at which that took place.

[62] Secondly, the general directions in relation to statements made by an accused were sufficient. The jury were made aware that, before accepting such statements as incriminatory, they required to be satisfied that they were actually made, accurately reported and fairly obtained. As the trial judge had correctly identified in his report to this court, the character of the remarks made at the time of the second appellant's apprehension was a matter for the jury. The Crown and defence positions had been made clear to the jury, both in the evidence of the second appellant and in the speeches. The statements were capable of an incriminatory construction and no further directions were required. Even if the statement made at the airport could not be described as "equivalent to an admission", and was better categorised as a "mixed statement", the absence of specific directions in that regard had not resulted in a miscarriage of justice. Of importance in that regard were the general directions that statements of an accused were admissible evidence "whether favourable or unfavourable to the accused that made them".

Ground 3

[63] The Advocate depute accepted that the Crown had a duty to disclose the information about Eileen Muir contained in the e-mail of January 2005. That would have been her normal practice and she did not concede that it was not done. She believed that she would have informed counsel during one of the meetings that had taken place around the time of the trial, but could not confirm the position unequivocally. All of the police statements had been brought to court during the trial and were available. Her belief was that they also had been disclosed. There had been a number of statement requests from the various accused, but, at that time, there had been no formal system of recording disclosure. Only latterly were receipts obtained for each statement disclosed. She submitted that no reliance could be placed on the record-keeping of the second appellant's former solicitors in that regard.

[64] It was submitted that, even if the information had not been disclosed, there had not been a miscarriage of justice. The second appellant had not identified how it would have affected the preparation or presentation of his defence. The assertion that counsel could have "ridden two horses" was mere speculation. Mrs Simpson's statement identified the individuals whom she claimed to have seen on the night of the murder, the time at which she saw them and where they lived. If those individuals were important to the second appellant's defence, his advisers had an obligation to precognosce them, but had not done so (cf. Fraser v HM Advocate 2008 SCCR 407, per Lord Justice Clerk Gill at paras [139] - [141]). The position which each of them would have adopted in evidence had never been established: Eileen Muir's position had to be seen in the context of the atmosphere of fear surrounding the trial and may have changed under oath; it was not clear that the others had specifically been asked by the police if they had seen Mrs Simpson. It was therefore difficult to assert what assistance they could have provided. Moreover, trial counsel had Joseph Haldane's statement, but had not asked Mrs Simpson why he had not mentioned her. Instead, a strategic decision had been taken: Mrs Simpson's evidence about timing had been re-enforced, a line of defence which aimed to undermine the Crown case. It could not, therefore, be said that, in light of the non-disclosure, there was a "real risk of prejudice" to the defence case (cf. McInnes v HM Advocate 2008 SCCR 869 per the Lord Justice General (Hamilton) at paras [17] - [21]). Indeed, even when one asked if the non-disclosure of the information "might not possibly have affected" the outcome the appeal could not succeed (cf. Hogg v Clark, per Lord Justice General Clyde at page 10). In hypothesising another line of defence of which he could now take advantage, the second appellant had not established a miscarriage of justice. The Crown's duty of disclosure did not encompass a requirement to review all the material in its possession in order to identify any such possible line of defence. Its obligations had been met in disclosing the statements of witnesses who appeared on the Crown list, including Mrs Simpson and Joseph Haldane (cf. McDonald v HM Advocate 2008 SCCR 954, per Lord Rodger of Earlsferry at paras [50] - [60]).

Reply by Mr McBride

[65] Mr McBride rejected the proposition that his submissions regarding non-disclosure involved speculation. Any suggestion that trial counsel reached a strategic decision implied that he had been fully informed. He submitted that the onus was on the Crown to show that he had been, but it had been unable to do so. As early as the e-mail correspondence in January 2005, it was clear that Mrs Simpson's recollection of timing would be important. The manner in which she had been examined at the trial by the Advocate depute demonstrated that. However, there was no trace of the statements of the various individuals in the second appellant's trial file. While that was also true of Joseph Haldane's statements, which had been disclosed, Angela Haldane was more important: Mrs Simpson had said that she spent a significant amount of time in her company. If there had been full disclosure, it was inconceivable that trial counsel would not have attacked Mrs Simpson's credibility and reliability. In doing so, he did not have to ride two horses: he could have portrayed her as a fantasist. The fact that none of the individuals whom she claimed to have met mentioned having seen her would have had a significant bearing on that issue and could not simply be attributed to an atmosphere of fear at the trial. Given the limited information which he had, trial counsel's only option was to bolster the credibility and reliability of the Crown's most important witness. Mr McBride accepted that, absent a precognition, one could not know for sure that Eileen Muir would have said under oath that she did not know Mrs Simpson. Nevertheless, trial counsel should have been in a position to explore that possibility. The fact that no precognitions were taken did not relieve the Crown of its duty to disclose any statement or other material of which it was aware and which either materially weakened the Crown case or materially strengthened the defence case (cf. McDonald v HM Advocate, per Lord Rodger at para [50]). Finally, Mr McBride submitted that it was preposterous to assert that it was acceptable that the jury be told about the alleged improper approach to one of their number.

Discussion

The fairness of the trial

The tapes (Ground 1(a))

[66] Between 27 July and 8 August 2004 McKinley was being held at Barlinnie Prison, having been remanded in custody on an unconnected matter. He was aware that guns and drugs were concealed in the house rented by him at Cumbernauld. He was very anxious that these be removed before they were found there by the police. The house was in the event searched on 11 August when guns and drugs were found concealed there. In the period prior to that discovery McKinley made repeated telephone calls to his criminal associates in an attempt to have these items removed from that location. These calls were monitored by the prison authorities and the relative tapes were Crown label productions.

[67] The tapes were of varying quality. In advance of the trial the Advocate depute listened to all of them and made a decision, on the basis of audibility, as to which of them she would have played in the course of the Crown case. That was done, the tapes judged to be sufficiently audible being played in the course of McKinley's examination-in-chief. No difficulty was experienced in that exercise. When counsel for the second appellant came to cross-examine McKinley, he announced that he was going to have all the tapes played. Certain of the audible tapes were replayed and the witness asked questions about their content. Counsel then moved to the remaining tapes. There were obvious difficulties about making out what was being said on at least some of them. The jury had not been provided at this stage with any transcripts of the tapes, though these were available. After about an hour the judge intervened - immediately following the playing of a tape which was particularly difficult to make out. He asked counsel in the presence of the jury what he thought the members of the jury were supposed to make of the exercise. The transcript suggests that members of the jury were equally bemused. There then developed, still in the presence of the jury, an exchange between counsel and the judge in the course of which counsel insisted that he would continue to have the tapes played (possibly with the jury having the benefit of transcripts in front of them) and the court refused to allow him to do so. The terms of the transcript suggest that the exchange may have become heated. It was by then well advanced on a Friday afternoon. The judge decided to adjourn the proceedings at that point until the following Monday, saying that he would hear counsel further at that time. In advising the jury of his decision he repeated an earlier expressed view that the playing of the tapes was "a particular waste of time". He also expressed the view that even with the use of a transcript it was very, very difficult to make out what was being said. The court then adjourned until the following Monday.

[68] On its resumption, after some exchanges in the presence of the jury, counsel submitted in their absence that he should either be permitted to have all the tapes played or that questions about the telephone conversations should be put to the witness under reference to the content of the transcripts.

[69] While we recognise the frustration which the trial judge must have felt on the Friday afternoon when the jury, without even the benefit of transcripts, were required to listen to tape recordings which were, to a greater or lesser degree, inaudible, we cannot approve of the way in which he dealt with this matter. He should, having confirmed with the jury their difficulty in making anything of this evidence, have invited them to retire while the issue of what use (if any) could properly be made of inaudible or barely audible material was debated before him. Instead, in their presence there took place what appears to have descended into an ill-tempered argument between the judge and counsel.

[70] Some criticism was made by Mr McBride to the effect that the trial judge had not dealt with the Crown and the defence even-handedly, "not interrupting when the Crown played tapes but doing so when the defence did". There is no substance in that criticism. The Advocate depute had, in preparation for the trial, taken the trouble to listen to all the tapes and to decide which were of sufficient quality to be used in evidence. So far as appears, trial counsel for the second appellant had not taken that trouble. Had he done so, he would have recognised that some at least of the remaining tapes could not usefully be played - at least not without the jury having transcripts before them.

[71] While an objective and informed observer of the proceedings might have been concerned about an unseemly clash in open court between counsel and judge, such an observer would not in the circumstances have, in our view, concluded that the second appellant's trial was for that reason unfair. The object of the cross-examination using the tapes was apparently twofold: first, to demonstrate that in the course of these calls McKinley had not suggested that the firearms and drugs in his house belonged to the second appellant and, secondly, to contrast the manner of McKinley's conversations with his criminal associates with his manner in the witness box. Both these objectives were achieved. McKinley conceded that he had not named the second appellant - for reasons which he gave; the tone of his telephone conversations was evident from the audible tapes which were played; there is nothing to suggest that his tone was different in any which were not played such that the second appellant was disadvantaged by the jury not hearing those tapes.

[72] We are not persuaded that in this respect the second appellant suffered a miscarriage of justice.

The excusal of the juror (Ground 1(b))

[73] The trial judge's remarks to the remaining members of the jury following his excusal of the single juror and his order that the jury be secluded are obscure. Comprehension of them is made more difficult by a word or words being inaudible. Whatever exactly he said, the decipherable part appears to encourage the remaining jurors to speculate as to why one of their number had been excused. This was unfortunate and should have been avoided, but we are not persuaded that an objective observer would have concluded that these remarks in any way imperilled the fairness of the trial.

[74] More concerning are the trial judge's remarks about that excusal to the jury when he came to give them directions. It was appropriate in the circumstances that he should direct them that they should put out of their minds anything which had been said by the excused juror, but it was unnecessary and inappropriate for him to tell them that there had been a suggestion that improper pressure had been brought to bear on that juror. That could only encourage them to search for any clues in the words or conduct of the excused juror which might point to the source of the improper influence. Despite the judge's instructions to ignore any attempt at influence, any conclusion arrived at as to the source could only tend to distort, one way or the other, an otherwise objective and balanced approach to the evidence. It is true that the judge did not indicate the source of any attempted influence - it could, for aught he said explicitly, have come from relatives or friends of the victim, anxious for convictions, as readily as from friends or relatives of the accused. But in the context of a trial where there was much evidence of malign influence on the part, in particular, of the second appellant, there was a real danger that the jury might conclude that the attempt to influence the juror had come from him or his associates.

[75] Despite some misgivings we have come, however, to the view that the second appellant's trial was not rendered unfair (and there was no miscarriage of justice) by reason of these observations in the judge's charge. Immediately before that passage he had given to the jury clear directions that they required to base their decisions solely on the evidence led at the trial. The passage of his directions which immediately follows the criticised remarks concentrates the jury's attention on evidence which had been led. That the jury in addressing the verdicts disregarded any influence which they thought might have been attempted by the second appellant and determined matters solely on the basis of the evidence appears to be confirmed by their acquittal of him on charge (13). This ground of appeal must in these circumstances also be rejected.

[76] Nor are we persuaded that, taking grounds 1(a) and 1(b) together, the trial was unfair or that there was a miscarriage of justice in respect of the second appellant's conviction of any of the charges to which these grounds relate.

The judge's legal directions

Theresa Simpson (Ground 2(a))

[77] In the course of his address to the jury counsel for the second appellant invited the trial judge to give them a direction that, unless they accepted the evidence of Mrs Simpson as credible and reliable in respect of the events she claimed to have observed in her back court, there was insufficient evidence in law to convict the second appellant on charge (9)(f). The trial judge gave no such direction.

[78] We should say at the outset that in modern practice it is inappropriate for counsel in the course of an address to the jury to seek from the trial judge a legal direction. That course of action allows for no debate upon the soundness of the request and for no participation in that debate by the prosecutor. Whatever may have been acceptable in the past, the appropriate time at which, in ordinary circumstances, a legal direction should be sought is by a common law submission made in the absence of the jury before they are addressed by any counsel. Exceptionally - if, for example, an unforeseeable line is taken by the Crown in its speech - it may be appropriate to raise such a legal matter in a defence response; but otherwise speeches should generally be confined to issues of fact.

[79] But there remains for consideration whether the trial judge misdirected the jury by not giving to them a direction of the kind sought. In our view there was no misdirection in that respect. There was a sufficiency of evidence of the second appellant's participation in the murder independently of Mrs Simpson's evidence. While not conceding the point, Mr McBride recognised that there might be a sufficient basis, independent of her evidence, upon which the Crown could found. In our view there was not only a sufficiency of evidence against the second appellant independent of Mrs Simpson, but that evidence was significant and compelling.

[80] The Crown case against the second appellant was that Colin McKay was one of the deceased's assailants and that McKay had been acting on the instigation or instruction of the second appellant. Leaving aside McKay's admissions to the police and to McKinley (which, having been made outwith the presence of the second appellant, were not competent evidence against him) there was overwhelming evidence that McKay was one of these assailants. After the assault on the deceased McKay was quickly identified, found and assaulted by the deceased's associates; blood of each of the deceased and McKay was identified on a knife found in the vicinity. McKay was a member of the faction headed by the second appellant and generally subject to his instructions. Before and after McKay's assault upon the deceased he was in telephone contact with the second appellant. The character of the attack on the deceased (suddenly and from behind) had all the hallmarks of a planned or directed assault. As to the second appellant's complicity in the killing, there was additionally evidence to the following effect. The second appellant had a few months earlier personally attempted serious violence against the deceased. When in prison he had rebuked his other associates (the first appellant and Kelly) for their ineffective attempts to dispatch the deceased by shooting him (calling them "dumb" and "dumber"), had stated that he was going to kill the deceased and that "they" (Mills and his associates) would only respect him (the second appellant) if one of them was "nipped". Some weeks before the deceased's murder and when being driven by Hughes, the second appellant, having thought that he had seen the deceased, said words to the effect that he "would pop [that is, shoot] one of them no bother". Samuel Maxwell, who was a close associate of the second appellant, was in an altercation with the deceased earlier in the evening of the latter's murder. Maxwell thereafter met up with the second, as well as the first, appellant. They were all in the general vicinity of where the attack on the deceased took place. As earlier mentioned, the second appellant was in telephone contact with one of the killers. The second appellant removed himself from the area shortly after the attack had been accomplished. There was no evidence that the attacker (McKay) had any personal grudge against the deceased but ample evidence that the latter was a target for the second appellant's hostility. Against this evidence, strongly indicative of a directing role in the deceased's murder, is to be set the second appellant's statements to the police on his return from abroad. His statement at the airport may have been of limited value to the Crown. The Advocate depute probably put it too highly when she described it in her speech to the jury as "equivalent to an admission". It was, however, indicative of an awareness of involvement of Maxwell in the affair. More telling was the second appellant's question at the police station, "What if I ordered it to be done?". Despite the second appellant's subsequent denial that he had so ordered, the jury would have been entitled to conclude that this remark was implicitly incriminatory and fitted well with the contention that he had in fact ordered the deceased's killing.

[81] The trial judge would have misdirected the jury had he directed them that acceptance of Mrs Simpson's evidence of what she had seen and heard in the back court was necessary before they could convict the second appellant on charge (9)(f). There was no necessity for him to explain why he was not giving such a direction. Had he thought fit to do so, that would inevitably have involved him in spelling out to the jury the abundance of other evidence incriminatory of the second appellant - a course which could not have been to the latter's advantage. This ground of appeal must clearly be rejected.

The second appellant's remarks (Ground of Appeal 2(b))

[82] There is no substance in this ground of appeal. What was to be made of the remarks said to have been uttered at the airport and later at the police station was a matter entirely for the jury to assess. The question said to have been posed by the second appellant at the police station could clearly, in the context of the whole evidence at the trial, be construed as implying a directing part in the killing of the deceased. While the Advocate depute in her speech to the jury may, as we have said, have exaggerated when she categorised the statement at the airport as "equivalent to an admission", the jury was well able to assess for itself whether the remarks were incriminatory and, if so, in what way. No specific directions were required of the trial judge. His general direction (that evidence of a statement, whether favourable or unfavourable to the accused who made it, is admissible in the case) sufficed. A direction that the jury should exclude either or both of these remarks from their consideration would have been a misdirection.

Non-disclosure (Ground 3 (as amended))
[83] It is clear that the statements made by Mrs Simpson to the police were disclosed to the defence in advance of the trial. In these she mentioned having been with other identified individuals on the evening of 22 July after she had observed the group of men in her back court. Also disclosed pre-trial was the police statement of Joseph Haldane, one of those individuals. It is not clear whether there were also disclosed police statements which the Crown held of various others of these individuals or information (not in a statement but in an e-mailed report by a police officer) emanating from a woman called Eileen Muir. The Advocate depute acknowledged that the statements from these witnesses and the information from Eileen Muir were disclosable material. Her belief was that, in the course of dealings with defence counsel in advance of the trial, she had, in accordance with her usual practice, disclosed them. However, it was not the habit of the Crown at that time to keep records in the form of receipts of the disclosure of material. The Advocate depute was accordingly unable to state definitively that she had disclosed this material. On the other hand Mr McBride (who was not counsel at the trial) was unable to assert definitively that the material had not been disclosed. Trial counsel's personal recollection was, understandably, hazy; the records of the second appellant's agent's at the trial were incomplete and no inference can safely be drawn from the state of their papers.

[84] In the event we find it unnecessary to decide whether or not the disclosable material was in fact disclosed in advance of the trial. We are prepared, for the purposes of this appeal only, to assume in the second appellant's favour that it was not disclosed. There remains then the question whether its non-disclosure led to a miscarriage of justice.

[85] In her statements to the police Mrs Simpson described events which she said she had observed in the back court of her tenement. She consistently stated that she had made that observation between about 6 and 6.30pm and that later that evening she had been in the company of various neighbours. Those neighbours included Joseph Haldane who in his statement - which was also available to the defence - had made no mention of seeing Mrs Simpson that evening. That possible inconsistency was, it seems, not followed up by the defence in its preparation for the trial; there is nothing to suggest that either Joseph Haldane or any of the other persons named by Mrs Simpson in her statements was precognosced on behalf of the second appellant. The line followed by the defence in cross-examination of Mrs Simpson was to seek to reinforce her testimony that her observation of persons in the back court was made about 6.00pm - testimony which on its face was inconsistent with the Crown reconstruction that the conspirators had been there shortly before the deceased was attacked some minutes after 9.00pm. If her timing, which she was at one stage in examination-in-chief only after pressure prepared to accept might be wrong, was in fact correct, the defence could mount a strong challenge to the Crown case on charge (9)(f) as directed against the second appellant. An alternative line might have been to attempt to destroy altogether Mrs Simpson's testimony - to suggest that her claimed observations were the product of her own fantasy. There might have been a stronger basis for that line if it had been known to the defence that one potential witness (Eileen Muir), in whose company Mrs Simpson claimed she had been that evening, had stated to the police that she did not even know a person of that name. But such a line would have been fraught with danger. Mrs Simpson had made what she claimed to be contemporary notes of her observations and had, on her own initiative, gone the next day to the police to report what she had seen. To suggest to her, on the basis that she had falsely claimed to be later that evening in the company of others, that she had, for some reason or none, made up her whole account was likely to have little success and was prudently not attempted by defence counsel, albeit he was armed with information that Joseph Haldane had made no mention of seeing Mrs Simpson. Mr McBride suggested that defence counsel might have "ridden both horses", but we do not see this as a realistic option. Either an out-and-out attack required to be made on Mrs Simpson's credibility or reliability, or counsel could adopt the more subtle approach of accepting and reinforcing her testimony and relying on it as undermining the Crown case. The two were not compatible. The latter course counsel took. It is the course he is likely also to have taken even if he had had access to all the disclosable material. And it has to be stressed that none of the other named persons, including Eileen Muir, has been precognosced even now, with the result that the second appellant is not in any position to advise the court what evidence would be likely to have been given in the event that such persons were cited and called as witnesses - whatever may have been said or not said to police officers at a time when Eileen Muir's position, for whatever reason, was that she did not want to be involved in the inquiry in any way. In these circumstances, whichever test is adopted as to the effect of non-disclosure by the Crown of disclosable material, there was here, in our view, no miscarriage of justice; nor was the second appellant's trial rendered unfair. This ground of appeal must accordingly be rejected.

[86] For all these reasons the verdict of the trial court on the second appellant is affirmed. The case will be continued for consideration of his appeal against sentence.