Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord EassieEassie Lord Emslie Lord PenroseMarnoch	[2009] HCJAC 54 18 Appeal No: XC99/05XC590/06 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL by MARK MURDO URQUHARTWILLIAM McALLISTER McPHEE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: KerriganShead; , Q.C., Niven-Smith; Morison Haggerty, DunfermlineTrainor Alston, Coatbridge

Respondent: DuguidK Stewart, A.D., Q.C.; ; Crown Agent

2 June 2009

18 February 2009

Introduction

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

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

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fixed for 17 February 2006 but on that date counsel withdrew from acting for the reason that the appellant had withdrawn his instructions to his solicitors.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[9] Similarly the passages extracted in the original ground of appeal from pages 14 and 15 of the trial judge's charge, must also be read in their proper context. Having earlier given directions on the need for corroboration of the Crown case, the trial judge said this, commencing at page 14, line 1:

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

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

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

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

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

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

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

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

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

Forensic performance (1)
[12] The first complaint advanced is to the effect that in the course of presenting the appellant's instructed defence that intercourse had occurred with the complainer's consent, trial counsel failed, in the cross-examination of the complainer, to explore and challenge the "inherent unlikelihood" of the complainer's account respecting the removal of her clothing. This head (i) of the Anderson grounds is as follows:

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

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

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

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

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

You mean resting on his shoulders? - Yes.

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

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

So your jeans were taken off? - Yes.

Were you wearing underwear of some sort? - Yes.

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

Taken off as well? Yes."

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

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

Did you not unbuckle his belt? - No.

And he unbuttoned your jeans? - No.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Forensic performance (2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are a number of possible interpretations of this presentation.

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

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

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

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

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

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

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

Preparation for trial (2)
[35] The second aspect in respect of which the solicitors, and also counsel, are criticised is their failure to seek records of calls made by and to the appellant's mobile telephone on the date of the offence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] The appellant was convicted after trial on indictment in the Sheriff Court of a number of charges of fraud. These might shortly be described as charges of defrauding elderly householders by misrepresenting the need for, or the extent of any necessary, roof or other repairs to the dwelling and by overcharging the householder for the works claimed to have been carried out. The appellant was indicted along with three co-accused, namely Alexander Leonard Allan, Alexander Cameron Townsley and Andrew Cummings. During the course of the trial the procurator fiscal depute withdrew the libel against Townsley. Both of the remaining co-accused were convicted. Andrew Cummings also appealed against conviction. Mr Cummings' appeal was heard immediately after the hearing of this appeal, by the same Bench, and is advised at the same time as this appeal by William McAllister McPhee.

[2] As originally framed, the indictment alleged that the four accused had formed a fraudulent scheme to obtain money from elderly and vulnerable persons by making false representations of the nature already indicated and that in pursuance of that scheme certain of the four accused committed particular frauds. However, in the course of the trial the Crown departed from its allegation of the formation of a fraudulent scheme and what was ultimately presented to the jury were a number of separate charges of fraud in which the Crown sought conviction of a (varying) plurality of the accused on the basis of art and part involvement of such of the accused as appeared on the particular charge. For completeness we would mention that Allan appeared on two charges of breach of the peace in which he was the sole accused.

[3] In their final form the charges of which the appellant was convicted were in these terms:

"(003) between 1 October 2003 and 31 October 2003, both dates inclusive, at the dwellinghouse at 26 Whin Hill Road, Ayr occupied by Amy North or Stewart, then aged 84 years, you ALEXANDER LEONARD ALLAN and WILLIAM MCALLISTER MCPHEE did pretend to said Amy North or Stewart that you would carry out, and thereafter that you had carried out, to a workman like standard necessary work and repairs to the structure of said dwellinghouse and in particular to the roof and guttering and eaves of said dwellinghouse and that the value of the work done and cost of materials was £3,450, the truth being as you well knew that said work and repairs were not necessary or the need had been grossly exaggerated by you, that the work and repairs purported to have been carried out had not been fully carried out, that the work which had been carried out had not been carried out to a workman like standard but had been executed in a grossly negligent and unworkman like manner, that the value of the work that had been carried out, including the cost of materials, had been grossly exaggerated and the true cost of work and materials should not have exceeded £191.84 and you did thus induce said Amy North or Stewart to give you in payment for said purported works cash to the sum of £2,150 and you did thus defraud said Amy North or Stewart of £1,958.16 or thereby.

(004) between 1 January 2004 and 29 February 2004, both dates inclusive, at the dwellinghouse at 8 Willockston Road, Troon, then occupied by Margaret Eddington Tennant, then aged 82 years, you ALEXANDER LEONARD ALLAN and WILLIAM MCALLISTER MCPHEE did pretend to said Margaret Eddington Tennant that you would carry out, and thereafter that you had carried out, to a workman like standard necessary work and repairs to the structure of said dwellinghouse and in particular to the roof, vents and flat roof extension of said dwellinghouse and that the value of the work done and cost of materials was £11,400, the truth being as you well knew that said work and repairs were not necessary or the need for said work had been grossly exaggerated by you, that the work and repairs purported by you to have been carried out, had not been carried out to a workman like standard but had been executed in a grossly negligent and unworkman like manner, that the value of the work that had been carried out including the cost of materials had been grossly exaggerated and that the true cost of work and materials should not have exceeded £1,500 and you did thus induce said Margaret Eddington Tennant to give you in payment for said purported works cheques payable to you ALEXANDER LEONARD ALLAN for the sum of £11,400, £4,450 and £4,450 respectively and attempt to induce said Margaret Eddington Tennant to pay you a further £8,400 and did thus defraud said Margaret Eddington Tennant of £19,800 or thereby and attempt to obtain a further £8,400 by fraud.

(006) on 19 August 2004 at the dwellinghouse at 5 Lothian Road, Ayr occupied by Mary Smith Cowan or Wyllie, then aged 77 years, you WILLIAM MCALLISTER MCPHEE and ANDREW CUMMINGS, at the house at which you ANDREW CUMMINGS had carried out roofing work previously between 1 May 2004 and 31 May 2004, both dates inclusive, did pretend to said Mary Smith Cowan or Wyllie that further work was necessary to the structure of said dwellinghouse and in particular the flat roof, that you would carry out said work to a workman like standard and the cost and materials would be £2,000, the truth being as you well knew that the work was unnecessary, grossly exaggerated or of a lesser value than that which you intended to charge and you did not carry out any work and you did thus induce said Mary Smith Cowan or Wyllie to give in part payment of any works that were to be undertaken by you the sum of £1,900 by cheque made payable to ALEXANDER CAMERON TOWNSLEY and you did thus attempt to defraud said Mary Smith Cowan or Wyllie of the sum of £1,900;

you WILLIAM MCALLISTER MCPHEE did commit this offence whilst on bail, having been granted bail on 15 June 2004 at Falkirk Sheriff Court.

(007) on 18 August 2004 at the dwellinghouse at 13 Victoria Park, Ayr, occupied by Ruth Johnstone, registered blind, then aged 84 years, you WILLIAM MCALLISTER MCPHEE, and others meantime unknown did pretend to said Ruth Johnstone that you would carry out, and thereafter that you were carrying out, to a workman like standard necessary works and repairs to the structure of said dwellinghouse and in particular to the roof and guttering of said dwellinghouse and that the cost of the materials was £600, the truth being as you well knew that said work and repairs were not necessary or the need had been grossly exaggerated by you, that the work and repairs purported by you to have been carried out, had not been fully carried out, that the work which had been carried out had not been carried out to a workman like standard but had been executed in a grossly negligent and unworkman like manner, that the value of the work being carried out including the cost of materials had been grossly exaggerated and the true cost of work and materials should not have exceeded £123.68 and you did thus induce said Ruth Johnstone to sign a cheque for £6,000 payable to ALEXANDER CAMERON TOWNSLEY in respect of payment for said work, having induced her to believe she was in fact signing a cheque for £600, and did thus defraud said Ruth Johnstone of £5,876.32;

you WILLIAM MCALLISTER MCPHEE did commit this offence whilst on bail, having been granted bail on 15 June 2004 at Falkirk Sheriff Court.

(008) between 1 August 2004 and 24 August 2004, both dates inclusive, at the dwellinghouse at 15 Ayr Road, Fisherton, near Dunure, Ayrshire, occupied by Catherine Todd McWhirter or Cooper, then aged 76 years, you ALEXANDER LEONARD ALLAN, WILLIAM MCALLISTER MCPHEE and ANDREW CUMMINGS did pretend to said Catherine Todd McWhirter or Cooper that work and repair was necessary to the structure of said dwellinghouse and in particular the roof, flat roof, skylight window and eaves, that you would carry out said work to a workman like standard and that the cost of works and materials would be £4,500, the truth being as you well knew that the said work and repairs were not necessary or the need had been grossly exaggerated by you, that the work and repairs purported by you to have been carried out to a workman like standard had been executed in a grossly negligent and unworkman like manner, that the value of the work being carried out and including the cost of materials had been grossly exaggerated and the true cost of work and materials should not have exceeded £300 and you did thus induce said Catherine Todd McWhirter or Cooper to give in part payment of any works being undertaken by you the sum of £3,500 in cash and you did thus defraud said Catherine Todd McWhirter or Cooper of £3,200 or thereby;

you ALEXANDER LEONARD ALLAN did commit this offence whilst on bail, having been granted bail on 12 March 2004 at Kilmarnock Sheriff Court;

you WILLIAM MCALLISTER MCPHEE did commit this offence whilst on bail, having been granted bail on 15 June 2004 at Falkirk Sheriff Court".

[4] The report by the presiding sheriff does not seek to present any summary of the evidence at the trial but simply gives a short response to each of the particular grounds of appeal. While, in the event, the absence of a summary of the evidence has been offset by the obtaining by the appellant of transcripts of certain parts of the trial proceedings, we would observe that it is generally helpful to the appellate Court if responses to the particular grounds of appeal can be set against the background of at least a brief summary of the evidence at the trial.

[5] The appellant tendered some 13 grounds of appeal. As counsel for the appellant recognised in his submissions some of these could be grouped together as reflections of essentially the same point and to the extent that he adopted that approach we shall follow it.

Charge 3: Grounds of appeal 1 - 3

[6] The first three grounds of appeal are in these terms:

Ground of appeal 1

"The Sheriff wrongly repelled a submission of no case to answer on the basis that there was no clear identification of the appellant in charge 3, said charge forming part of a series of charges based on the Moorov doctrine".

Ground of appeal 2

"The Sheriff wrongly repelled a submission of no case to answer in respect of charge 3, the purported identification of the appellant relating to him 'being on the roof' and to no other actions. Accordingly, there was insufficient ground for the jury to infer knowledge of fraudulent activity on his part".

Ground of appeal 3

"The Sheriff agreed to, but failed to direct the jury to disregard evidence of a statement which was erroneously led by the Crown in respect of charge 3, said statement not having been lodged in terms of section 259 of the Criminal Procedure (Scotland) Act 1995".

[7] The complainer on charge 3, Mrs Amy Stewart, was unable by reason of age and infirmity to give oral evidence in Court. So the Crown invoked section 259 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - to lead hearsay evidence from police officers of three statements which the police officers in question said they had noted from what was said to them by Mrs Stewart. The statements are summarised by the procurator fiscal depute in her address to the jury as follows:-

"Charge Three. Alexander Leonard Allan and William McPhee. The evidence on this charge comes from Mrs Stewart's statements that were read out to you and the identification of the accused by Mrs Stewart, made to the police, through the photographs that were shown to her and spoken to in court. In total, there were three statements taken from Mrs Stewart. All were read to you. Again, I accept that there were some differences between the first and the second statements, however, I ask you to accept that these are because Mrs Stewart corrected some errors in the first and that the errors are not unduly significant. The third statement related to Mrs Stewart's identification of Allan and McPhee as the men she was referring to in her earlier statements as being on the roof.

In her first statement, Mrs Stewart told the police that she was walking home on 8^th October when she saw a white van draw up at the house and a very fat man, five foot three, five foot four, aged about 50, 55, no definite accent, asked if she needed any work done. And she said no. She said that he had a driver with him who was about five foot, five foot, sorry, and another male who was five foot two. The very fat man then left. The following day she went out and when she returned she saw the driver and the small man were working on the roof and she was upset. She asked them what they were doing and was told that they were fixing the roof and that it would cost £4,500 to £5,000. She then went on to say they hadn't done any work except taking out the moss from the guttering which now leaks all around and that the thin one told her they would not take a cheque and that they both took her to her bank, where the thin one waited at the door while she went in and got £2,150 in cash that she gave to him. She confirmed that the thin one also gave her a card with the name Allan Building and Roofing and wrote 'amount due £3,450'.

In her second statement, Mrs Stewart stated that what she had said about the men returning on the second day had not been correct and that they, the men, had returned the same day and that when she asked them what they were doing, the very fat one said that the roof needed work done and would cost £4-5,000. She then went on to say that the wee fat man was on the roof for about three hours and there was debris lying in the driveway, notwithstanding that she hadn't wanted any work done. She also indicated that it was the thin one who had taken her to the bank and that when they, Mrs Stewart and the thin man, had returned to her house, she heard the thin man on the mobile saying 'I've got it'. That would be her thinking her was referring to the money.

In her third statement she identified the two men who had been on her roof as Allan and McPhee. If you accept that in her statement she was referring to the two men who had returned and were working on her roof, then it is clear that Allan and McPhee were acting together. When, the fat man told Mrs Stewart that it would cost four and a half to £5,000 for work she didn't want done and when the thin man presented her with a business card stating that £3,450 was due and thereafter took her to get cash, £2,150 and that it was (inaudible)".

[8] In summary, three points were advanced by counsel for the appellant under this group of grounds of appeal. One, which we describe first, was principally linked to ground of appeal 3 and arose in this way. The identification of the appellant by the complainer, Mrs Stewart, by means of photographs was carried out by two police officers, viz a DC Dempster and a DC Lorimer, who spoke to the hearsay statement of Mrs Stewart respecting that identification of the appellant in a selection of photographs. DC Dempster was called by the Crown as the first of the two police officers. It appears that during the course of his evidence in chief, when he spoke to Mrs Stewart's having identified the appellant as being on the roof (which accorded with the statement annexed to the application under section 259) it was suggested to DC Dempster that the appellant was present to take the lady to the bank to withdraw the money. No objection was taken to that question by trial counsel for the appellant. However, he apparently cross examined the witness as to the existence of a written note of such a statement, since such a written statement was not in those annexed to the section 259 application. The appellant did not seek any transcript of DC Dempster's evidence. And so in large measure one is reliant upon what is to be gleaned from the transcript of DC Lorimer's evidence.

[9] During the course of DC Lorimer's evidence, trial counsel objected to any attempt to elicit from him evidence of a hearsay statement by Mrs Stewart suggesting that the appellant took her to the bank. It appears from the transcript that, after a somewhat confused discussion of this objection, matters were resolved on the basis that the procurator fiscal depute would confine her examination of DC Lorimer to the hearsay identification by Mrs Stewart of the appellant's being on the roof and would not pursue any suggestion beyond that.

[10] As we ultimately understood it, the submission of counsel on this first point, came to be that DC Dempster's evidence respecting Mrs Stewart's hearsay identification of the appellant as having been present to take her to the bank should have been discounted in the no case to answer submission made in terms of section 97 of the 1995 Act and that the jury should have been directed to ignore it.

[11] We are unable to accept this submission. As framed, ground of appeal 3 is inept to address the ultimate complaint and, although the submission came to be directed to DC Dempster's evidence, the Court was not provided with transcripts of his evidence to enable matters to be fully considered.

[12] But more importantly, it is clear that DC Dempster's evidence was led without objection. Section 118(8) of the 1995 Act provides:-

"(3) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act -

(a)....

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to -

(i) ....

(ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated".

So it is now too late to assert inadmissibility. But further, and looking more to the substance of the issue, and since one is concerned with sufficiency, it is to be noted that the Crown did not rely on this part of the evidence of DC Dempster in resisting the no case to answer submission. Nor indeed did the procurator fiscal depute rely on it in the presentation of the case to the jury. From the terms of the transcript it is apparent that the presiding sheriff did not give any undertaking to, or an indication that he would, give directions respecting the contentious part of DC Dempster's evidence. He was not invited later to give such a direction. And, in our view, the sheriff was well entitled to refrain from drawing attention in his charge to this aspect of DC Dempster's evidence.

[13] The second point within the submission of counsel on this grouping of the grounds of appeal was in its essence directed towards the accuracy of Mrs Stewart's identification to DC Dempster and DC Lorimer of the appellant as being one of the two men "on the roof". The criticism of that identification proceeded upon an attempt to analyse the descriptions noted by the police who took the first statement from Mrs Stewart and the actions noted by them as having been attributed by her to those individuals. Those actions comprise the arrival of three men, one of whom was "very fat" but according to the statement as noted, the fat man left but the other two returned. It was stated by counsel that the description which would fit the appellant would be that of the "very fat" man who went away and therefore, it was submitted, he could not have been on the roof.

[14] At the outset we would record that the Advocate depute remarked that if the description of the "very fat" man matched the appellant, that would not much assist him since on the premise thus advanced he was part of the common enterprise. However, in our view a greater difficulty relating to this branch of the argument for the appellant is that one is concerned with the contention that the sheriff wrongly rejected the no case to answer submission. As a matter of sufficiency, the fact is that the hearsay evidence was given by the police of Mrs Stewart's identifying the appellant as being one of the men on the roof. It may be that in view of what she had been noted as saying previously, in an earlier statement to the police, the reliability of that identification was open to challenge and criticism. But, in our view, that was a matter to be advanced before the jury and for the purposes of sufficiency the sheriff was entitled to proceed upon the basis that the appellant had been identified as one of the two men on the roof.

[15] The third point put forward was that even if the appellant was identified as being one of the two men on the roof, he would not by that fact alone be aware of what had been said to the householder, Mrs Stewart, respecting the supposed need for repair and was therefore not participant in that misrepresentation. This point was only faintly advanced by counsel, who, in our view rightly, recognised that there were adminicles of evidence elsewhere from which, taking the Crown evidence at its highest, it could be inferred that the appellant knew what was going on.

[16] Accordingly we have come to the view that the submissions advanced as respects the conviction on charge 3 in this particular group of grounds of appeal lack sound foundation.

Charge 4 - Grounds of appeal 4, 5 and 6

[17] We turn next to charge 4, the grounds of appeal grouped by counsel for the appellant as relating particularly to the conviction on this charge being grounds of appeal 4, 5 and 6. They are in these terms:-

"Ground of appeal 4

The Sheriff wrongly repelled a submission of no case to answer in respect of charge 4 in that there was no clear identification of the appellant, said charge forming part of a series of charges based on the Moorov doctrine".

Ground of appeal 5

"The Sheriff wrongly repelled a submission of no case to answer in respect of charge 4, the purported identification of the appellant relating to him 'being on the roof' and to no other actions. In particular, there was no evidence of the appellant either being involved in charging the complainer for work done, or of obtaining money on the basis of repaying it at a later date, both actions being ascribed to the first named accused only. Accordingly, there was insufficient ground for the jury to infer knowledge of fraudulent activity on his part".

Ground of appeal 6

The Sheriff misdirected the jury in respect of charges 3 and 4, saying there was sufficient evidence in law to convict the appellant on the basis of the Moorov doctrine, there being no clear identification of the appellant on either charge. He also failed to direct the jury that the Crown assertion that a 'lack of (clear) identification (of the appellant) was not fatal if (they) accepted (the appellant) was involved in other offences' was erroneous, and he made no reference in his charge to the case of Howden v HM Advocate 1994 SCCR 19 or to the alleged modus operandi being so special as to justify the inference that the perpetrator of said crimes was the same person".

[18] Essentially the question raised under this chapter of the argument is whether there was any sufficient identification of the appellant as a participant in this charge from the complainer, Miss Tennant, to enable the normal Moorov principles of mutual corroboration to apply or whether, in the absence of such identification by the complainer, the approach in Howden v HM Advocate 1994 SCCR 19 was the only avenue to conviction open to the Crown.

[19] Prior to the trial, the complainer, Miss Tennant had been shown a selection of photographs by police officers. She had also attended an identification parade. In her evidence in chief Miss Tennant, having spoken to her dealings with the co-accused Allan, was asked then about Allan's associates. The transcript of her evidence (page 21 to 22) reads thus:-

"What about his associates? What can you remember about them? - Well all I can remember about them, are that they were two fat men.

Two fat men - and I only saw them when they handed the business card in and said about the gutters.

Were they tall, short, medium height? - Medium height. Fat. I think this is the only way I could describe them.

But there are different stages of fat. Was it very fat, middling fat, only slightly chubby? - I suppose it was chubby fat".

In her evidence Miss Tennant was later asked about having been shown photographs by the police at page 45ff of the transcript. She confirmed in effect having identified Allan by his photograph (page 46, line 13ff) having been shown production 42, the emulator board containing photographs of inter alios Allan. She was then referred by the procurator fiscal to production 43, an emulator board which we gather contained a photograph of the appellant and the following exchange took place (page 47, line 4ff):

"Can I ask you to look at production no.43? Remember seeing those photographs? - Yes. But I couldn't, I said I couldn't be absolutely certain but these were the only two. But I .....

Which, sorry, which were the only two? - Five and six.

Five and six. But you couldn't be absolutely certain? - No, I couldn't.

And who was five and six? - Well I'd taken that they were the two fat men.

The two fat men. No.5. - I mean I could be wrong. I said that at the time. I couldn't guarantee.

So you couldn't guarantee it, but did they look like the man or men? - They looked somewhat like the men.

Did either one of number 5 or 6 look more like the man? - Well I couldn't say that.

Couldn't say 5. 5 or 6 looked like the fat.... - Yes.

Thereafter did you attend an identification parade? - Yes."

[20] According to the report of the identification parade, Miss Tennant positively identified the co-accused Allan. In response to a question respecting resemblance identification, Miss Tennant indicated the appellant and is noted as having explained the basis of that resemblance - "small, stout. He's the only one I would say". In her evidence in chief, Miss Tennant confirmed her having identified Allan (incidentally, it may be said, recollecting with some, albeit not complete, accuracy Allan's position in the line-up). As respects the appellant, her evidence in chief continued (at page 49 of the transcript), in these terms:

"Were you also asked to say whether you could see the fat man that you referred to? - Yes. But I, I couldn't identify him.

Did you point out somebody who was similar to him? - I only (inaudible) beside that man.

And did that person give a name? - No (inaudible)".

[21] We do not have a transcript of the evidence given by the police officers who showed production no.43 to the complainer. In his report to us the sheriff states (page 9):

"According to DS Grayson, in August 2004 the witness Mrs [sic] Tennant identified the appellant from photographs, without any qualification".

But, as the Advocate depute pointed out, that was unlikely to be so, otherwise the procurator fiscal depute at the trial would not have conceded - as she did - that there was no proper identification of the appellant on charge 4 to allow a normal application of the Moorov doctrine. The transcript of the debate on Monday 10 July on the no case to answer submission casts some further light on that observation by the Advocate depute. At page 22 (lines 13-18) of the transcript and again at page 23 (lines 17-22) the procurator fiscal depute concurs in the view that the "resemblance" identification at the identification parade would respectively not have been "sufficient" or "a proper identification". Put shortly, the reason for the procurator fiscal depute having adopted that view was that it was evident that the complainer only identified the accused as resembling the perpetrator on the basis that he was fat. As respects the photographic identification the transcript of the debate on the Monday continues thus (page 23, line 24):

"Mrs Cunningham [the procurator fiscal depute]: However, my recollection is that when Miss Tennant was shown the emulator photographs she identified McPhee and another; that was position 5 and 6 if I remember correctly and she said she couldn't be absolutely certain. It looked somewhat like the man.

[Sheriff]: Well, [inaudible] 5 and 6 two fat men [inaudible]. 'I could not be absolutely certain. They looked somewhat like the fat men. They looked somewhat like the men but I [inaudible] were fat'. Those are the [inaudible] so what does that mean Mrs Cunningham?".

The quality of the recording and transcription process obviously leaves much to be desired, but that said, the transcript does not suggest that the procurator fiscal depute had available to her any evidence from DC Grayson of a positive unqualified identification of the appellant as one of Allan's associates in the activities which are the subject of charge 4.

[22] It is evident from both that part of the debate on Monday 10 July and also the tenor of the resumed discussion on the following day that the Crown did not consider that there had been any identification of the appellant as respects charge 4 which would allow a simple or normal application of the Moorov principle of mutual corroboration. Reliance would therefore have to be placed on the Howden doctrine, whereby the want of identification on one charge might be overcome by proof of particular facts and circumstances sufficient to prove that the crime libelled in that charge must have been perpetrated by the same person as the person fully identified as committing the crime libelled on another charge displaying the same special characteristics and modus operandi. The relevant, brief passage (page 16 to 17) in the address by the procurator fiscal depute to the jury reflected her position that use had to be made of the Howden approach.

[23] Against that background the submission for the appellant was, in its essence, to the effect that the presiding sheriff required, first, to give specific directions relating to the state of the identification evidence of the appellant respecting charge 4. Secondly, since the Crown had rightly accepted that it required to deploy a Howden approach, the jury ought to have been directed on that principle (as further explained and applied in Gillan v HM Advocate 2002 SLT 551; 2002 SCCR 502). The principle or rule of Howden had its particular features, distinct from Moorov, albeit that in some very general respects one was in the same territory. But express directions were required.

[24] For his part the Advocate depute submitted that the identification made at the identification parade of a "resemblance" identification might be sufficient to allow the customary operation of the Moorov doctrine of mutual corroboration. But he did not offer any authority to that effect. As we have already indicated, the Advocate depute displayed difficulty in supporting the terms of the sheriff's report in its account of the evidence of DC Grayson and the sheriff's narration of an apparently unqualified emulator identification by the complainer. But ultimately, the submission of the Advocate depute on this branch of the case was that, given the general area in which the decisions in Moorov and in Howden operated, it was not essential for the sheriff in this case to direct the jury on the rule or doctrine to be derived from the latter.

[25] We preface our decision on this branch of the appeal by observing that, on any view, the identification evidence respecting the appellant on charge 4 presented difficulty, recognised by both parties in the debate on the no case to answer submission. Given that accepted difficulty, one might have expected the sheriff to have given some attention to it in his charge to the jury. But he did not. In his report to this Court the sheriff states that DC Grayson gave evidence of an unqualified identification as the explanation why he did not adopt the course now desiderated. However, as we have already indicated, the Advocate depute had difficulty with the accuracy of the account of the evidence underlying that explanation. For the reasons which we have already indicated (and which proceed also on the basis of a transcript of the oral proceedings not available to the sheriff in preparing his report) we share that difficulty. The next best identification evidence is that of the complainer's "resemblance" identification at the identification parade. The procurator fiscal depute recognised, of course, that a "resemblance" identification is different in many respects from an actual identification such as Miss Tennant had given respecting the co-accused, Allan. The resemblance identification given at the identification parade was in the vaguest of terms and involved a selection of the appellant simply on the basis that he was stout and shorter than some of the others on the parade.

[26] We consider that the judgment of the prosecutor at the trial that there was no identification of the appellant sufficient to justify a straightforward application of the Moorov principle of the mutual corroboration was understandable. The resemblance identification at the identification parade was, of course, not an identification of the appellant as one of the perpetrators. It was only a selection of the appellant as the person who, of those within the parade, most closely resembled the perpetrator by reason of his girth and height. And, for the reasons already indicated, it appears that the photographic identification procedure proceeded along similar lines.

[27] We are inclined to the view that the assessment made at the trial by the procurator fiscal depute was not only understandable, but also right. We are not aware of any case in which the doctrine of mutual corroboration has been applied as respects a charge upon which the accused has not been positively identified as the perpetrator and certainly none was brought to our attention by the Advocate depute. The Moorov doctrine proceeds upon the basis that as respects one charge there is a primary single witness evidence of identification but that for corroboration one has to look to other charges, also with single witness identification of the accused, in order to enable the single nexus or course of similar conduct to be established. None of the cases suggest that, absent any identification, the doctrine extends to charges for which there is no effective positive identification. But it is not necessary for us to decide that issue definitively since, on any view, the procurator fiscal depute having made it plain that she was proceeding on the basis, as it was put, of a combination of Moorov and Howden it was in our view necessary for the sheriff to address the Howden approach and give directions to the jury as to the criteria which they had to examine.

[28] With the benefit of the hindsight which an appellate court enjoys, we would add that it is perhaps unfortunate that the procurator fiscal depute did not make more plain to the sheriff (and in non-technical terms to the jury) the particular nature of the combination of Moorov and Howden upon which she relied. The starting point, deploying Howden, would have had to be that the perpetrator in charge 4 was the same person as the perpetrator in another charge, proof of that identity of perpetrator being established by proof of the particular factual circumstances, such as modus operandi and peculiar physical features of the person or his clothing, leading beyond reasonable doubt to the conclusion that the same person was the perpetrator in the two (or more) charges. Thereafter, proof that the common perpetrator was the accused might have been required to be fortified by the deployment of the Moorov principle to yet further charges. As best we understand it, that appears to have been the position of the procurator fiscal depute.

[29] In these circumstances, we have come to the view that as respects charge 4 the directions given to the jury were inadequate. Counsel for the appellant submitted that it was far from clear that if proper directions had been given the jury would have convicted the appellant of charge 4. With albeit some hesitation, we have come to the view that it cannot be said that, given proper directions, the jury would nonetheless have convicted the appellant of that charge. In these circumstances we consider that we must hold that the conviction on charge 4 falls to be quashed. Counsel for the appellant expressly stated that it was accepted that quashing the conviction on charge 4 on this ground did not in itself affect the soundness of the conviction of the appellant on the other charges.

Ground of appeal 7

[30] Counsel for the appellant intimated that no argument was to be advanced respecting this ground.

Charge 7 - Ground of appeal 8

[31] This ground of appeal reads:

"The sheriff wrongly repelled the submission of no case to answer in respect of charge 7, there being no libel for the crime of forgery as evinced by the evidence".

The circumstances relative to this ground of appeal are reported by the sheriff at pages 14-15 of his report as follows:

"Charge seven is somewhat unusual in that there was a false pretence regarding roof repairs and the obtaining of £600. At the point of obtaining the £600 by fraud, the appellant had the victim, Ruth Johnstone, sign a cheque. She is blind and believed the cheque was for £600 as the appellant said, when in fact it had been made out for £6,000. I considered that the libel covered both the initial obtaining of £600 by fraud which became the obtaining of £6,000 by fraud because that was the sum inserted in the cheque by the appellant. There was no forgery. The witness left the amount to be inserted by the workman. She was assured that £600 had been inserted and she signed the cheque using a device which she has for signing her name. It transpired that the cheque had been made out for £6,000. The work done should have cost no more than £123.68 according to the expert. The witness was told that she was being charged £600 which was of course excessive. She signed the cheque believing it to be for £600 as she had been told but in fact it had been made out for £6,000".

While declining to jettison this ground of appeal, counsel for the appellant said little in its support. In our view the ground is misconceived. Nothing was forged. As the sheriff rightly recognised there were simply two fraudulent representations. The first related to the need for roof repairs costing £600. The second was that the cheque which the blind lady was being invited to sign was represented to her as having been made out for the sum of £600, whereas the appellant had made the cheque out for £6,000. The second representation might be said to "piggie-back" on the first, but both were well encompassed within the libel of charge 7.

Ground of appeal 9

[32] The terms of this ground of appeal are as follows:

"The Sheriff wrongly repelled a submission in respect of charge[s] 3, 4, 6, 7 and 8 that they all lacked specification and contained alternative averments which should have been clarified. Accordingly, the appellant was convicted of charges which contain alternative and some mutually exclusive averments. Moreover, all said charges allege that part of the fraudulent pretence was that work was to be carried out to 'a workmanlike standard' there being no evidence of such a claim having been made and no such implied standard being part of criminal law".

The sheriff gives his response as follows:

"The charges contained full and clear specification. There are alternatives in the charges which are appropriate and understandable. There was a pretence that work was needed when in fact it was not indeed, or the need had been greatly exaggerated. This covers the situation where there might be no work needing done or there might be a minimal amount but no more. Likewise the statements that the work was not fully or properly done, i.e. not to a workmanlike standard, but the cost was grossly exaggerated etc, covers the variables where no work was done or work was done where little or none was needed and the roof left in a worse condition. It seemed to me that 'workmanlike standard' was an appropriate and understandable phrase to cover what the victim was entitled to expect for the sums of money paid out. The standard was applied in respect of persons holding themselves out to be experienced workmen and roofers. The discrepancy between the work done (as valued by experts) and the sums charged were so vast as to leave it open to the jury to conclude that these were fraudulent pretences".

While again not expressly abandoning this ground of appeal, counsel for the appellant rightly recognised that in the context of a no case to answer submission it was difficult to criticise the sheriff's approach. He did not suggest that the ground of appeal had wider ambit than error in the rejection of the no case to answer submission. In our view, for the reasons indicated by the sheriff in his response to this ground of appeal, he was entitled to reject the no case to answer submission insofar as it proceeded upon this ground. We therefore consider this ground of appeal also to be unsound.

Ground of appeal 10

[33] The tenth ground of appeal is in these terms:

"The Sheriff failed to direct the jury that they should exercise great caution when considering the application of the Moorov doctrine, particularly where statements lodged in terms of section 259 of the Criminal Procedure (Scotland) Act 1995 were being used in the application of the doctrine. He also failed to direct them as to how they could assess the credibility and reliability of complainers whose statements had been lodged in terms of said section 259".

[34] This ground of appeal does not, of course, suggest that there was any error in the directions which the sheriff gave on the Moorov doctrine. And at page 42 in the transcript of the sheriff's charge to the jury the sheriff says, of the Moorov rule, "You have to apply the rule with caution". As developed before us the emphasis in the submission was on the reliance by the Crown on the hearsay evidence of certain of the complainers given by way of police officers speaking to statements noted by them and in respect of which the section 259 notices had been given. Counsel referred to Nulty v HM Advocate 2003 SCCR 378, particularly paragraph 37 of the Opinion of the Lord Justice Clerk (Gill); reference was also made to Campbell & Hill v HM Advocate 2003 SCCR 779; Johnstone v HM Advocate 2004 SCCR 727 and Harkins v HM Advocate [2008] HCJAC 69 (unreported). It was submitted by counsel that given the reliance on such hearsay statements the directions given by the presiding sheriff were inadequate.

[35] In paragraph 37 of his Opinion in Nulty v HM Advocate the Lord Justice Clerk says:

"[37] But even where it is appropriate for the hearsay evidence to go to the jury, fairness requires that the trial judge should give an explicit direction about the dangers inherent in such evidence. He should remind the jury that they have not had the opportunity to assess the credibility and reliability of the maker of the statement at first hand. He should point out that the truth of the statement has not been tested by cross-examination. If the statement was not made under oath or affirmation, he should comment on that too. The trial judge should also direct the jury that they must assess the weight of such evidence with care. If there are any dangers in the hearsay evidence that are special to the facts of the case, for example the age or state of mind of the maker of the statement, or any interest in the outcome, or any improper motive on his part, or any other factor bearing on his credibility and reliability, the trial judge should give explicit directions on that point too (cf. McKenna v HM Adv, supra, 2000 JC 291, at p. 295C-D)".

The other members of the Court in Nulty were in agreement with what was there said by the Lord Justice Clerk.

[36] The sheriff naturally directed the jury on these hearsay statements. His directions included this passage, commencing at page 29, line 15 of the transcript of the charge:-

"Now, ladies and gentlemen, I require to direct you on hearsay evidence by witnesses who were unfit to come to court and whose evidence was read to you, whose statements were read to you. You heard the statements made to the police by Mary Wylie, Ruth Johnstone, Amy Stewart and Hugh Douglas being read out. Now, that is hearsay evidence, ladies and gentlemen, what somebody else has been heard to say. Normally that is not allowed as evidence in court but there are exceptions to that rule and this is one of them because these witnesses were not fit to come to court. The circumstances which arise in this case allow evidence to be given about what the witness said to the police. If you're satisfied that the witnesses made these statements and that they have been accurately recorded, you can regard their contents as part of the evidence in the case. It is evidence of facts that you can take into account but you have also to decide if what the witnesses said is credible and reliable. Their statement being read out is different from them giving evidence themselves in court about these matters because it is evidence at second hand. You have to decide what weight to attach to them so you should remember this in judging their credibility and reliability of what was said: it hasn't been given on oath in court, it hasn't been subject to cross-examination. Cross-examination can reinforce or undermine the evidence of a witness. You have not seen the witness give the evidence so you haven't had the opportunity to assess them as a witness such as you would have had if he or she had appeared in court and given evidence. Now, you have heard about the age and infirmity of these witnesses so you will have to take care in assessing this evidence and these are the various factors which you should bear in mind".

[37] In our view this passage addresses all the relevant matters listed by the Lord Justice Clerk in paragraph 37 of his Opinion in Nulty. Counsel suggested that more might have been included and instanced underscoring the lack of material available to enable the defence to attack the reliability of the makers of the hearsay statements in cross examination. However, counsel did not suggest that, apart from age and infirmity (to which the sheriff drew the jury's attention), there was any other material known to the defence which could usefully and effectively have been deployed were the hearsay complainer to have given oral evidence. While it may be that the sheriff could have expanded on his directions by way of illustration or by giving greater emphasis, that was a matter for his discretion and nothing said by counsel persuades us that there was any misdirection on the part of the sheriff. We therefore reject this ground.

Ground of appeal 11

[38] This ground of appeal is couched thus:

"The Sheriff misdirected the jury in saying that there was sufficient evidence in law to apply the Moorov doctrine in respect of charges 3, 4, 6, 7 and 8, the evidence alleging differing modi operandi; charges 3, 7 and 8 alleged poor workmanship, charge 6 alleged unnecessary work done and charge 4 alleged a combination of both".

In so far as this ground of appeal might suggest that the claimed differences in modus operandi were such as to preclude the application of the rule or principle of mutual corroboration, we consider that such a suggestion is misconceived. Plainly, what was involved in the charges involved crimes which were similar in any reasonable sense. In the end, counsel for the appellant in large measure focused on the sheriff's having told the jury that there was "sufficient evidence in law" to apply Moorov. Counsel submitted, in summary, that in doing so the sheriff might have conveyed to the jury that they did not require to consider whether there were sufficient similarities as might enable them to judge whether the necessary underlying nexus existed.

[39] The passage in the sheriff's charge relevant to that re-focused submission occurs at page 43, line 13ff of the transcript where the sheriff, having discussed Moorov respecting the breach of the peace charges (affecting only the co-accused Allan), says this:

"So far as the fraud charges, the Crown relies on the similarities in charges 3, 4, 6, 7 and 8. That is defrauding elderly and frail people by doing unnecessary work or not doing work or exaggerated work that needs to be done or has been done. The Defence I think had some criticism that the circumstances in the separate incidents were not similar. But in this case, ladies and gentlemen, there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule to apply but what you have to decide is firstly if that evidence is credible and reliable. Secondly, if the necessary link in time, character and circumstances has been established and three, if the rule should be applied. If you do apply it, then you can convict the accused of each of these charges".

Read as a whole, it is thus clear that the sheriff did not foreclose the jury's considering the presence or absence of the necessary nexus, since he expressly told them that they had to decide "if the necessary link in time, character and circumstances had been established....". Accordingly we do not consider that this ground of appeal has merit, especially where, in our view, there were no material differences in the modus operandi in the respective charges for the purpose of the operation of the Moorov doctrine in the circumstances of this case.

[40] All that said, we would observe that the practice among some judges and sheriffs of telling the jury in bald or unqualified terms that there is enough or sufficient evidence in law may in some circumstances be unhelpful and potentially confusing. Even in the absence of a no case to answer submission, the judge or sheriff presiding at the trial, if he considers that there is an insufficiency of evidence respecting the charge, or any element of it, should direct the jury that they must acquit, or cannot convict on the part of the charge in question. There is usually no need for any general positive statement of legal sufficiency. But not only is the inclusion in the charge to the jury of such a statement generally unnecessary; it has, in some cases, the potential to confuse the jury because, while at its height, the Crown case may be sufficient, that sufficiency may evaporate if, say, the jury reject parts of the Crown case, for example, a corroborating witness's testimony. In that event the jury, in accordance with the directions on corroboration given elsewhere, do have to consider sufficiency and may require to acquit on the basis of legal insufficiency albeit that they may wholly believe the complainer. In the context of the present case, however, we do not consider that the sheriff's observations in his charge on the sufficiency of evidence can be said to have resulted in a miscarriage of justice.

Charge 8 - Ground of appeal 12

[41] This ground of appeal is couched thus:

"The Sheriff wrongly repelled a submission of no case to answer in respect of charge 8 which alleged inter alia that the fraudulent pretence involved carrying out work and repairs that were no[t] necessary, the complainer giving evidence that she considered that the work done was necessary and she had requested it to be carried out".

[42] The complainer on this charge, Mrs Cooper, was aged 78 years. Put briefly, the co-accused Cummings attended at her house and advised her that some slates were missing from the front roof which he offered to, and did, replace for a price of £60. Mrs Cooper was aware of problems with the rear roof of her house and, having discussed matters with her husband, asked Cummings to have a look at it. On the next day five men, including the appellant and Cummings, turned up and began stripping the roof. The appellant represented to the complainer that the cost would be £4,500 in cash. The complainer, with some assistance from relatives, obtained and gave to the appellant some £3,500 in cash. Shortly thereafter activity on the roof effectively came to an end when the police intervened. The complainer deponed that she had been able to get an acquaintance in the trade to do the work for £300 but she had been advised by him that the cost would have been £1,000 at most.

[43] The narrative within the ground of appeal is thus correct to the limited extent that Mrs Cooper accepted that some repairs to the rear roof were necessary. But her evidence disclosed, prima facie, a fraudulent misrepresentation that the costs of such necessary repairs would be £4,500 to account of which she was persuaded to part with £3,500 in cash to the appellant, whereas, at most, the appropriate charge would be around £1,000. That fraudulent misrepresentation as to cost - as opposed to necessity - was part of the libel in charge 8. Being part of the libel it is plain that the sheriff could not have upheld any no case to answer submission. The ground of appeal is directed to his decision not to uphold such a submission. This ground of appeal is thus without merit.

Ground of appeal 13

[44] This ground was not argued.

Result

[45] For the reasons already given, we consider that we must quash the conviction of the appellant on charge 4 of the indictment. We reiterate that it was accepted that the quashing of that conviction, on the grounds advanced, did not affect the validity of the appellant's convictions on the other charges. The challenge as to the validity of the convictions on those other charges having failed, those convictions must stand, and the appeal is, except to the limited extent of charge 4, refused.