APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Bracadale	[2009] HCJAC 78 Appeal No: XC637/07 & XC669/07 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LADY PATON in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by (1) MATTHEW McFADDEN and (2) ANDREW SPARK Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: C Shead et C A Smith, Advocates; Paterson Bell, Edinburgh (for First Appellant)

Act: Carroll, Solicitor Advocate and M C McKenzie, Advocate; McClure Collins, Edinburgh,

(for Second Appellant)

Alt: K.D. Stewart, A.D.; Crown Agent

8 October 2009

Introduction

[1] On 31 July 2007 the appellants were found guilty of murdering Robert Gardner (then aged 36) "by punching and kicking him on the head and body, stamping on his head and body, by striking him on the head and body with a block of concrete and [striking] him on the body with a knife" (Charge 3). There had been an earlier assault on Mr Gardner (Charge 2) alleged to have involved four assailants, namely the two appellants, Joshua Donnachie, and Colin McAughey, but the subsequent murderous assault involved only the two appellants. The evidence established that death was caused by blows to the head with the block of concrete.

[2] The Crown ultimately withdrew the charge against Donnachie and McAughey. The two appellants were convicted of the initial assault and of the subsequent murder. The first appellant was convicted of murder on the basis that he had used the concrete block to strike the victim, while the second appellant was convicted of murder on the basis of concert.

[3] The relevant facts are summarised in the trial judge's report relating to the second appellant at pages 6 and 9-10 as follows:

"From the evidence it appeared that the [two appellants and their] companions decided to attack the deceased because he had refused to give them a drink or because he had ignored them...The initial part of the attack involved three or four people, including [the two appellants], kicking and punching the deceased and stamping on his head and body. Thereafter the second stage of the attack involved the [two appellants] pursuing the deceased after he got to his feet, and again bringing him to the ground, where they subjected him to a further assault of kicking and punching him about the head and body and stamping on his head and body. The [first appellant] left briefly to arm himself with a concrete coping stone and, when he returned, [he] knelt down and brought the coping stone down on the head of the deceased, uttering the words "Die you bastard". At that time the [second appellant] was engaged in a kicking attack upon the deceased and he persisted in it. Thereafter he knelt down and stabbed the deceased in the buttock, leaving the knife in place. When the [second appellant] continued to kick the deceased and when he stabbed him, he was aware that the [first appellant] had engaged in a murderous attack upon the deceased and the [second appellant] associated himself with that murderous attack by continuing with his attack upon the deceased who was lying helpless on the ground..."

[4] Both appellants appeal against conviction. The first appellant contends that his trial was rendered unfair by (i) the admission of evidence of statements by the second appellant naming the first appellant as the wielder of the concrete slab; (ii) the use of evidence of voice identification arising from words spoken by the first appellant on request at an identification parade. The second appellant, for his part, contends that there was a misdirection in the judge's charge in that the phrase "knew or must have known" was used in the course of directing the jury on concert.

The first appellant's First Ground of Appeal: statements of co-accused (Spark) outwith the first appellant's presence
The trial judge's report
[5] In his report, the trial judge describes evidence of conversations which took place after the attack, involving the former co-accused Colin McAughey, his parents, and the co-accused Spark (the second appellant). Mr Edward McAughey gave evidence that the second appellant described some of his own actions with the knife. He told Mr McAughey that "Maffie" (the first appellant McFadden) had hit the deceased with a slab on the legs. Mrs Elizabeth McAughey gave evidence that during another conversation the second appellant again described his own actions with the knife, and told her "Liz then that Maffie hit the guy twice that I seen on the head with a slab". The judge then continues:

"The evidence was objected to on behalf of the appellant as the statements were made outwith the presence of the appellant. I repelled the objection. Having done so, I gave the jury a direction at the time that the evidence was not evidence against the appellant and I repeated that direction in my charge to the jury (charge 30 July 2007 page 12, line 14 to page 14, line 5). The position adopted by the Crown was that the co-accused Spark was guilty of murder on an art and part basis in respect that he had seen the use of the slab and had thereafter continued in a kicking assault upon the deceased and, finally, had stabbed the deceased as he lay unconscious on the ground. There was support for that theory in the evidence of the pathologist, Dr John Clark (Crown witness no 33) who confirmed that the principal cause of death was a significant head injury. He had visited the scene and spoke of pieces of masonry lying beside the body. He witnessed the knife protruding from the buttock of the deceased and he expressed the opinion that the stab wound looked to him to be the final injury inflicted on the deceased as he lay motionless on the ground. The pathological findings fitted entirely with a deliberate stab wound as the deceased lay unconscious. The theory was also supported by Pauline McSorley (Crown witness no 71), a forensic scientist who confirmed that the scientific findings were consistent with the deceased being stabbed when he lay motionless on the ground, as a result of which blood seeped to the ground by operation of gravity. The Crown case against the co-accused Spark depended upon concert. In particular, it depended upon his knowledge that the deceased had been struck with the slab and, in that knowledge, he had joined in or persisted in the attack by kicking and/or stabbing the deceased. At pages 46-58 of my charge on 30 July 2007, I directed the jury generally about concert and how that related to the present case (page 52, line 7 onwards). As I explained at page 55, line 9 onwards, the Crown's position was that there were two stages to the concerted attack represented by charges 2 and 3 respectively. The second stage was the alleged spontaneous concerted murderous attack by the appellant and the co-accused Spark. I dealt with this at page 56, line 5 onwards.

The state of knowledge of the co-accused Spark was crucial to the Crown's case against him in respect of the charge of murder. It respectfully seemed to me that the evidence of Mr and Mrs McAughey of the statements by Spark shortly after the attack upon the deceased were relevant to the case against Spark. In particular, his statement that the appellant had struck the deceased with a slab either on the legs (statement to Mr McAughey) or on the head (statement to Mrs McAughey) was significant in showing that he had knowledge of the use by his co-accused, the appellant, of a slab in the attack upon the deceased. The jury could infer from that statement that Spark had special knowledge of the attack which could only have been available to those present at the time of the attack. Insofar as Spark also admitted to being involved with the deceased at the time when the knife entered the deceased's body, either as a result of an accident or as a result of a stabbing by Spark, the knowledge of the use of the slab by his co-accused was particularly relevant in the light of the subsequent evidence of the pathologist and the forensic scientist from which the jury could conclude that the insertion of the knife was the last act as the deceased lay unconscious on the ground. In the circumstances, I considered that the statements made by the co-accused Spark to Mr and Mrs McAughey were relevant evidence against the co-accused Spark and as I have already indicated to your Lordships, I gave directions to the jury to the effect that such statements were not evidence against the appellant."

The trial judge's charge
[6] The trial judge, in his charge (pages 12 to 14) directed the jury as follows:

"As I told you earlier, if you believe that one of the original four accused made a statement about the circumstances of the crime and mentioned the alleged involvement of any of his co-accused who was not present when the allegation was made, that is not evidence against the co-accused. As I explained earlier, the reason is that because the co-accused was not present when the statement was made, he did not have an opportunity to refute the allegation or to comment upon it and it is really a question of fairness, really. Such a statement, that is a statement made ... implicating a co-accused when the co-accused is not present, such a statement may only be evidence against the person who made it. And how might that apply in the present case, insofar as the two remaining accused are concerned?

Well, the examples that I recollect from the evidence relate to the testimony of Mr and Mrs McAughey, the parents of the former third accused [Colin McAughey]. You'll recall that each of them gave evidence about separate conversations that they had with their son, in the presence of the fourth accused [Spark] and in the course of these conversations, they allege that the fourth accused said various things to them, including a reference to the first accused, Maffie, hitting the deceased with a slab. Now, Maffie, or the first accused, was not present. If ... you accept that the fourth accused did make such statements to Mr McAughey and Mrs McAughey or either of them, that can only be used by you in considering the case against the fourth accused. It is not evidence in the case against the first accused, and I'll come on to how that might be evidence against the fourth accused in due course."

Submissions for the first appellant in relation to the First Ground of Appeal
[7] Mr Shead submitted that evidence of the second appellant's statements to Colin McAughey's parents was highly prejudicial to the first appellant. The trial judge had directed the jury that they could convict the first appellant only if they were satisfied that he had physically used the slab to hit Mr Gardner. The first appellant challenged the evidence identifying him as the person using the slab, and had lodged a Special Defence of incrimination naming someone else as the slab-wielder. Accordingly the question of the identity of the person using the slab was critical. In those circumstances the second appellant's naming of the first appellant as the person using the slab was highly prejudicial and could not be cured by a standard direction. Possible solutions would have been a separation of trials, or a redaction of the evidence such that the first appellant's name was deleted therefrom, or evidence being agreed by joint minute in such a way as to exclude the first appellant's name, or desertion of the trial pro loco et tempore. Counsel accepted that, during the trial, defence counsel had not made a motion for any of those options. The only objection taken was that the evidence was so prejudicial that it should not be led before the jury. Nevertheless in the circumstances of this particular case, the judge's response was insufficient. More was required because of the risk that the jury would be influenced by evidence on a critical issue. In the particular circumstances of the present case, the first appellant had been denied a fair trial.

Submissions for the Crown in relation to the first appellant's First Ground of Appeal

[8] The advocate depute submitted that the Crown was attempting to bring a conviction against the second appellant on the basis of concert. The Crown's position was that the first appellant had been the actor (using the slab to assault the deceased), and the second appellant had been involved art and part. In those circumstances it was entirely proper for the Crown to lead evidence of statements made by the second appellant showing his knowledge of events, provided that sufficient direction was given to the jury that such evidence was evidence only against the person who made the statements. That had been done at the time when the relevant evidence was led, and in the judge's charge. Defence counsel had failed to demonstrate any specialty or peculiarity which might render the trial judge's directions insufficient. Beacom v HM Advocate, 2002 SCCR 33 was distinguishable, as there, the Crown had not sought a conviction against the co-accused. In the present case, there had been no motion for a separation of trials; no motion that the court should desert pro loco et tempore; no submission at common law; no motion that the evidence should be redacted in some way to remove the first appellant's name.

Discussion: the first appellant's First Ground of Appeal
[9] In Beacom, the leading in evidence of the co-accused's statement was unjustifiable, as the Crown did not seek a conviction against the co-accused. By contrast in the present case the Crown sought to establish the second appellant's guilt by way of concert, in that he had known of and acquiesced in the first appellant's attack upon the victim with the slab, and had continued to assault the victim in that knowledge. The second appellant's statements to the McAugheys revealed his knowledge of the use of the slab by the first appellant, and the second appellant's involvement in attacking the deceased, matters wholly relevant to the issue of concert. The statements, taken with the evidence from the pathologist and the forensic scientist, enabled the jury to conclude that the stabbing by the second appellant had occurred after the attack with the slab by the first appellant, all as set out in the judge's report. In such circumstances it was not only advisable but necessary for the Crown to lead evidence of the second appellant's statements. It was then for the judge to give the jury appropriate directions explaining that what the second appellant claimed about the first appellant outwith the latter's presence was not evidence against the first appellant, because the first appellant (being absent) was unable to defend himself, by for example correcting or contradicting or denying what the second appellant claimed. This the trial judge duly did. The judge was in our view entirely correct in repelling the defence objection to the leading in evidence of the statements and in giving the jury the directions he did. We are unable to accept the submission that the judge should, ex proprio motu, have ordered a separation of trials, or the removal of the first appellant's name where it appeared in the second appellant's statements, or desertion of the trial pro loco et tempore, or some other such step. In a case involving a spontaneous assault by two or more persons, it is clearly in the interests of justice that the perpetrators be tried together in one trial, unless very special circumstances are placed before the court and a persuasive argument presented. For completeness we add that removal of the first appellant's name from the evidence of the statements given by the second appellant would have had little effect, as the jury would be well aware that they were having to consider evidence about an attack by two persons; thus if one (the second appellant) claimed that the other attacker was using the slab, that other attacker must be the first appellant.

[10] In all the circumstances we have no hesitation in refusing the First Ground of Appeal for the first appellant.

The first appellant's Second Ground of Appeal: request that the first appellant speak at the identification parade
The identification parade
[11] The first appellant was arrested as a suspect for the murder. He appeared before a sheriff on 8 November 2006. He was committed for further examination and remanded in custody. On 11 November 2006 he took part in an identification parade, during which he was asked to say some words, all as set out in the trial judge's report below. On 16 November 2006 he again appeared before a sheriff, was fully committed for trial, and was again remanded in custody.

The trial judge's report
[12] In his report, the trial judge comments upon the second Ground of Appeal as follows:

"The parade was viewed by a number of witnesses. Dawn Owen (Crown witness no 12) positively identified the appellant by sight. Leanne Bradley (Crown witness no 15) positively identified the appellant by sight. Robert Bradley (Crown witness no 17) asked the parade to stand on their right hand side and requested that they each say 'I hope you die you bastard'. All members of the parade turned right and all members of the parade repeated the phrase. Thereafter this witness positively identified the appellant by voice. Ellen Weir Bovaird McIntosh or Bradley (Crown witness no 16) stated that she needed the persons on the parade to speak because it was voices that she had heard. She was asked what she wanted them to say, to which she replied 'where's the knife?' All members of the parade repeated the phrase. This witness identified the appellant but said 'I'm not a hundred per cent. I think it's number 7". The appellant was standing at position number 7... The appellant was represented at the identification parade by a solicitor. No objection by the appellant's solicitor is recorded in Crown Production 52 about...any aspect of the procedure adopted at the parade. No objection was taken at the trial to the admissibility of the evidence about the identification parade. No devolution issue was raised before me. Nor have I been given copies of any response by the appellant's advisers to the allegation of inadequate representation of him. Accordingly I am unable to make any further comment on this ground of appeal."

Submissions for the first appellant in relation to the Second Ground of Appeal
[13] Counsel's primary submission was that the practice of requesting participants in an identification parade to provide voice samples amounted to a contravention of Article 6 of the European Convention on Human Rights if the evidence so elicited was material to the ultimate conviction. Article 6 applied not only to the trial itself, but also to the preliminary investigative stages. It was accepted that a person, once arrested, could be put on an identification parade (Adair v McGarry, 1933 JC 72, 1933 SLT 482), but the legal foundation for the obtaining of voice samples during the parade was less clear. During the trial itself, an accused person could not be made to stand up, or move in any way, or to speak, with a view to assisting a witness in his or her identification: Beattie v Scott, 1990 JC 320. While that decision did not extend to identification parades, counsel submitted that there was no proper legal foundation for a request for a voice sample during a parade, and certainly not without safeguards. Safeguards would include a suspect's solicitor being able to make representations that his client should not have to participate in a parade, or that the voices of the members of the parade should be similar; cf Appendix G of the Lord Advocate's Guidelines on the Conduct of Visual Identification Procedures dated February 2007; and section 267B(1), (3) and (8) of the Criminal Procedure (Scotland) Act 1995 (the statutory scheme for parades including penalties for non-compliance but also opportunities to raise issues before a sheriff or a judge). In the present case, there had been a lack of safeguards for the first appellant, who had spoken at the parade in a way which contributed to his conviction. In support of his submissions, counsel referred to authorities including Stott v Brown, 2001 SCCR 62, at pages 66, 74, 76, and 81; and Jalloh v Germany (2007) 44 EHRR 32.

[14] Nevertheless, recognising the force of Lord Bingham's observations in Stott v Brown, counsel's secondary submission was that the circumstances of the present case could be characterised as a breach of the first appellant's right to silence or right not to incriminate himself. The situation was comparable to an accused being asked to say something to the police. Relevant factors included the degree of compulsion; the relevance of the material obtained; and the use to which that material could be put. The issue was not the narrow question of admissibility, but rather whether there had been a breach of the right against self-incrimination and whether the admission of the evidence resulted in the first appellant not having a fair trial: cf Holland v HM Advocate, 2005 SCCR 417. Counsel did not contend that there would have been an insufficiency of evidence in the present case had the voice identification been absent. However the voice identification was material evidence, and it was impossible to say what would have happened if that evidence had been excluded. The fundamental question was whether the trial had been fair: cf Lord Rodger in Holland at paragraph 39. A devolution minute reflecting the second ground of appeal had been tendered, late. The appeal court was in effect being asked to determine a devolution issue under the Scotland Act, namely whether there had been incompatibility with the first appellant's right to a fair trial.

[15] Mr Shead acknowledged the existence of section 118(8) of the Criminal Procedure (Scotland) Act 1995. He accepted that defence counsel had made no objection to the admissibility of the voice identification evidence, either before or during the trial. Nevertheless he submitted that the proper approach was to ask whether the use of that evidence had resulted in an unfair trial: cf Lord Rodger in Holland at paragraph 39. If necessary, the court could characterise the lack of objection by the defence as defective representation. The ultimate question was whether reliance upon the evidence of voice identification rendered the trial unfair. The evidence of voice identification had been material, although not critical for a sufficiency of evidence.

Submissions for the Crown in relation to the first appellant's Second Ground of Appeal
[16] The advocate depute submitted that requiring a person to speak did not amount to a requirement that he incriminate himself. The sound, intonation, and accent of a voice was as personal to the speaker as his appearance, and could be the subject of disguise. The voice might be an important piece of evidence if the witness was blind or if he had defective vision, or if the crime in question involved, say, telephone communication.

[17] The correct starting-point in the appeal was section 118(8) of the Criminal Procedure (Scotland) Act 1995. The first appellant had legal assistance at all relevant times, including at the identification parade, the preliminary hearing, and the trial. Experienced trial counsel had considered the issue of the voice identification at the parade, and had elected not to take any objection. Scots law had always sought to achieve a balance between the rights of an individual and the public interest in the detection and prosecution of crime: cf Adair v McGarry cit sup (as up-dated by recent European jurisprudence); Walkers, Evidence (3^rd ed) paragraphs 18.2.2 et seq. It was accepted that section 118(8) did not invariably foreclose an argument founded upon defective representation. For example, a fundamental point might not have been taken, when it should have been taken. But that was not the position in the present case. By being asked to speak, the first appellant was not being subjected to an intrusive search; nor was he having his personal integrity violated; nor was he having his liberty restricted (always accepting that his liberty was in any event restricted to some extent by having to attend the parade, the underlying authority for that requirement being the committal warrant and the common law: Adair v McGarry). The ultimate consideration was whether it was fair to allow evidence to be led in relation to what happened at the parade. There was a significant difference between being obliged to give a sample of one's voice, and being compelled to give a substantive answer to a question, for example about being at the locus, or about having seen or heard anything. The mere sound of a voice could not be equiparated with self-incrimination. A voice sample was equivalent to a fingerprint or a sample of blood, breath, hair, or saliva. Reference was made to Walkers, Evidence (3^rd ed) paragraphs 18.2.3 to 18.2.5.

[18] The advocate depute further contended that the practice of providing voice samples at identification parades was well-established in Scotland and widely understood by criminal practitioners. The terms on which an identification parade was conducted anticipated the possibility that participants would be asked to speak. The request by the witnesses in the present case would therefore not be unexpected. It was irrelevant what words or phrases were requested to be spoken - whether the very words heard at the time of the crime, or an anodyne phrase. To ask the members of the parade to repeat a phrase heard at the time of the crime was not unreasonable and was proportionate, given the balancing of public and private interests. Reference was made to McIntyre v HM Advocate 2005 SCCR 380; Henderson v HM Advocate 2005 SCCR 354; and Jalloh v Germany cit sup.

Discussion: the first appellant's Second Ground of Appeal
[19] We agree with the advocate depute that the starting point is section 118(8). That subsection provides:

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

(a) shall be quashed for want of form; or

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

(i) the relevancy of the indictment, or the want of specification therein; or

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

unless such objections were timeously stated."

[20] It is, in our view, of the utmost importance for the efficient administration of justice that objections to the admission of evidence are taken timeously, for example at a preliminary hearing, or during the course of the trial. Only in very exceptional circumstances will the appeal court sustain arguments relating to admissibility or to the leading of evidence said to render the trial unfair where no objection was taken at or before the trial.

[21] In the present case, the first appellant had full legal representation at all relevant times. His defence was that he was not one of the two murderous assailants, and that someone else whom he named in his Special Defence of Incrimination had been involved. Accordingly in order to overcome the formidable obstacle posed by section 118(8) the first appellant requires, in our view, to persuade us that any alleged failure on the part of his counsel was a failure properly to present that defence, all as set out in the line of authorities including Anderson v HM Advocate, 1996 JC 29, McBrearty v HM Advocate, 2004 JC 122, and Grant v HM Advocate, 2006 JC 205.

[22] In McBrearty, Lord Justice Clerk Gill emphasised that:

"[34] Anderson v HM Advocate draws the distinction between a failure properly to present a defence and a judgment as to the conduct of the defence at the trial made in the exercise of professional discretion. In general, a complete failure to put forward an important line of defence ... will found a relevant ground of appeal, whereas a judgment made as to the manner of presentation of such a line of defence will not ..."

[23] In Grant, the Lord Justice Clerk further stated:

"[22] An Anderson ground cannot rest upon a criticism of strategic and tactical decisions reasonably and responsibly made by trial counsel. These are matters with the scope of counsel's legitimate judgment..."

[24] In this case, we have not been satisfied that the circumstances are such as to enable counsel to overcome the formidable obstacle posed by section 118(8), for the following reasons.

[25] Current European jurisprudence clearly envisages the use of voice samples obtained during the course of an investigation of a crime as a legitimate means of identifying an individual: cf Jalloh v Germany (2007) 44 EHRR 32, paragraphs 102 and 114. While the European Court has not (so far as we are aware) given any specific guidance as to the means whereby such a sample may properly be obtained, domestic law has addressed that issue to some extent. The emphasis has been upon the balance to be struck between the interests of the public in the proper investigation and prosecution of crime, and the interests of the accused person: Adair v McGarry, 1933 JC 72; Beattie v Scott, 1990 JC 320; Stott v Brown 2001 SCCR 62; McIntyre v HM Advocate, 2005 SCCR 380. Thus as Lord Justice General Hope stated in Beattie at page 323 (noting that the stage of investigation of a crime is very different from the stage of the trial):

"...questions of degree may arise both before and after full committal as to what may be done by way of investigation of the crime ..."

[26] Lord Bingham in Stott v Brown at page 80E-G emphasised the need for a balance between public and private interests, the requirement to assess the proportionality of the domestic law's response, and the fact-sensitive nature of Article 6:

"...The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or circumstances. But this approach has been consistently eschewed by the [European Court] throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur ius. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v Sweden at paragraph 69 of the judgment; Sheffield and Horsham v United Kingdom at paragraph 52 of the judgment ..."

[27] Such Scottish authority as exists relating to voice identification illustrates the weighing up of public and private interests, and the search for proportionality. For example, in McIntyre v HM Advocate, 2005 SCCR 380, the use of a taped interview with police officers as a voice sample was held to be admissible in evidence although the accused did not know at the time that the tape would be used for that purpose. In Henderson v HM Advocate, 2005 SCCR 354, a tapped telephone tape-recording was held admissible in evidence in order to identify the voice of the caller. In both McIntyre and Marnoch, timeous objections were made to the leading of the relevant evidence, and accordingly the terms of section 118(8) and the Anderson line of authority did not arise.

[28] Turning to examine the circumstances of the present case, and bearing in mind the Anderson authorities and the European and domestic jurisprudence, the first matter to note is that what occurred at the identification parade was entirely in keeping with standard established practice, well-known to practitioners of Scottish criminal law. In Scotland, a suspect is at common law obliged to participate in an identification parade following upon the issue of a committal warrant: Adair v McGarry. Part of the established practice and procedure at such a parade may include a request by a witness viewing the parade that each member of the parade should say some word or phrases. That practice is not only well-established and well-known to practitioners in the field, but is expressly referred to at page 3 of the identification parade report (Crown production no 52 in the appellants' trial), where the following passage appears:

"TO BE READ TO THE SUSPECT(S)/ACCUSED BEFORE THE PARADE HAS BEEN ASSEMBLED AND IN THE PRESENCE OF HIS LEGAL REPRESENTATIVE, IF ANY

7.(a) You have been required to take part in an identification parade the purpose of which has been explained to you. Neither you nor your legal representative(s) may in any way interfere by action or words in the conduct of the parade once it has begun.

At any time during the parade, witnesses may ask for members of the parade to turn around, to stand side-on, to walk, to speak, to do all or any of these things or to do anything the witness wishes. You should do your best to meet any such requests."

Thus both the suspect and his lawyer are made aware in advance of the viewing of the parade that such a request may be made.

[29] Moreover the act of speaking is a natural and voluntary activity of the human body. What occurred at the parade cannot be equiparated with events in Jalloh, where the suspect was held down by four people and subjected to the forcible administration of an emetic by naso-gastric tube, resulting in what the European Court described as "an unnatural and involuntary activity of the body in order to obtain the evidence". Indeed the court specifically distinguished that type of event from the obtaining of a voice sample, in the following passage in paragraph 114:

"...the degree of force used in the present case differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. To obtain such material, a defendant is requested to endure passively a minor interference with his physical integrity (for example, when blood or hair samples or bodily tissue are taken). Even if the defendant's active participation is required, it can be seen from Saunders that this concerns material produced by the normal functioning of the body (such as, for example, breath, urine or voice samples). In contrast, compelling the applicant in the instant case to regurgitate the evidence sought required the forcible introduction of a tube through his nose and the administration of a substance so as to provoke a pathological reaction in his body. As noted earlier, this procedure was not without risk to the applicant's health."

[30] As that passage indicates, the fact that some effort is required on the part of the suspect does not necessarily result in a breach of Article 6. As Lord Bingham reasoned in Stott v Brown at page 81E-F:

"...It is true that the respondent's answer [to a question about the identity of the driver] whether given orally or in writing, would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her breath was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence...it is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test..."

[31] Further it was in our view reasonable and proportionate for the first appellant to be requested to say particular words heard by witnesses at the locus. Voice identification may depend not only upon accent, register, tone and timbre but also upon the pronunciation of certain consonants, vowels, words or phrases.

[32] As for the recommendations in Appendix G of the Lord Advocate's Guidelines dated February 2007, those guidelines were not issued until after the parade in question. The Guidelines record best practice, but alternative procedures may not necessarily be unfair and should be assessed in the context of all the circumstances prevailing at the time. Moreover the Introduction to the Guidelines provides:

"...Where the identification procedure is known to be principally for the purposes of voice identification only, a 'voice' identification parade should be held. Procedures for the conduct of such identifications are detailed in Appendix G."

The parade in question was not "principally for the purposes of voice identification". For all of the above reasons, we consider that Appendix G has little relevance in the present case.

[33] Finally, in assessing the overall fairness of proceedings, it is worth noting that there was ample evidence against the first appellant over and above the evidence of voice identification. For example, two eye-witnesses identified the first appellant as being at the locus and as performing certain actions. Forensic evidence identified the first appellant's fingerprints on a bottle stained with the deceased's recent blood, found near the deceased's body.

[34] In conclusion in relation to counsel's primary submission relating to Article 6, bearing in mind the particular facts of this case against the background of European and domestic jurisprudence with its emphasis upon the balance to be struck between the public interest in the prosecution of crime and an individual's rights, trial counsel's decision not to object to the leading of the evidence of voice identification cannot in our view be characterised as a failure properly to present the first appellant's defence in terms of Anderson. On the contrary, in all the circumstances the experienced trial counsel was well entitled to make the professional judgment about the conduct of the defence set out in her report to this court, which refers expressly to the question of proportionality and the tactical preference for an attack upon the reliability of one of the witnesses to voice identification, as she had identified another person at an earlier parade.

[35] As for counsel's secondary submission, we do not agree that the procedure at the identification parade constituted a breach of the first appellant's right to silence or right not to incriminate himself. Those rights ("distinct...[but] closely related" per Lord Bingham in Stott v Brown) relate to the right of a suspect not to be compelled to answer substantive questions concerning the crime, such as where he was at the relevant time, whom he was with, what he was doing, and what he heard and saw: cf the observations of Lord Bingham in Stott v Brown. The taking of a voice sample focuses not upon substantive content, but upon the timbre of a voice, intonation, register, accent, pronunciation and other such features amounting to identifying features of the individual in the same way as, for example, facial features, hair colour, height and build; fingerprints; and DNA taken from blood, hair or skin samples. As the European Court stated in Jalloh at paragraph 102:

"The court has consistently held...that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissues for the purpose of DNA testing...[emphasis added]"

[36] We shall accordingly refuse the first appellant's second ground of appeal. For completeness we add that counsel very properly did not attempt to argue that the exclusion of the evidence of voice identification would have resulted in an insufficiency of evidence. There was other evidence from two eye-witnesses, identifying the first appellant and describing certain of his actions. There was forensic evidence of the first appellant's fingerprints on a bottle found near the deceased's body and smeared with the deceased's recent blood. Thus even if section 118(8) were in some way to be elided, and even if there were thought to be some substance in the first appellant's complaints about the conduct of the identification parade (which we do not accept), then in view of all the evidence additional to that of voice identification and pointing to the guilt of the first appellant, we would not have been persuaded that any miscarriage of justice had occurred.

Appeal by the second appellant (Spark)

[37] The Note of Appeal on behalf of the second appellant states:

"2. The trial judge misdirected the jury on the question of concert when he stated at p 56 of his charge on 30 July 2007 '...and thirdly the other attacker [referring to the appellant] knew that or must have known that the slab was being used...". The Crown case was that this was a case of spontaneous concert with the alleged plan of attack libelled in charge 2 altering to become a murderous attack. Against this background the comments of the trial judge in his charge at p 56 that the 'other attacker knew or must have known' and the direction which was repeated at p 57 of the charge '...and thirdly the other attacker knew or must have known that the slab was being used' and on the following day when the charge recommenced the direction at [p 1] was '...Spark persisted in the attack on Mr Gardner after he knew or must have known that Mr Gardner had been struck by the concrete slab" and at p 4 of the charge on 31 July 2007 '...persisted in the attack upon Mr Gardner after the use of the slab in the knowledge that the slab had been used or was being used'. These directions imply that the jury could convict of murder or culpable homicide, on the basis of concert, even if they found that the appellant did not have actual knowledge of the use of the slab. This misdirection is a material misdirection and in the circumstances of this case, when the evidence lacked the necessary conjunction in many respects, has resulted in a miscarriage of justice."

The trial judge's charge
[38] The trial judge in his charge at pages 56 to 57 directed the jury as follows:

"The second stage was an alleged spontaneous concerted murderous attack, in which one of the attackers struck Mr Gardner on the head with a concrete slab. And if you are satisfied first of all that there was a joint attack...by two people upon Mr Gardner at this stage, secondly that one of the attackers struck Mr Gardner on the head with a concrete slab intending to murder him or with the wicked recklessness needed for murder, and thirdly, the other attacker knew that or must have known that the slab was being used and in that knowledge joined in or persisted in the attack by kicking and/or stabbing Mr Gardner, both men are responsible for the use of the slab. So if I just go back over that. If you are satisfied beyond reasonable doubt that there was a joint attack by two people...on Mr Gardner, that's at the second stage, secondly, one of the attackers struck Mr Gardner on the head with a concrete slab intending to murder him or with the wicked recklessness needed for murder, and thirdly the other attacker knew that or must have known that the slab was being used and in that knowledge of the use of the slab persisted in his attack by kicking or by stabbing Mr Gardner, both are responsible in law...for the use of the slab and its consequences."

Submissions for the second appellant
[39] Mr Carroll submitted that the evidence was not so cogent that the jury would inexorably have been driven to the conclusion that the two appellants were acting in concert. Accordingly the directions in relation to concert were crucial. However the judge had directed the jury that the second appellant "must have" known about the use of the slab by the first appellant: in other words, that the second appellant had a duty or obligation to know about the first appellant using the slab (not that the second appellant actually knew). That direction would cause confusion. The jury may have been under the impression that even if the second appellant did not in fact know about the first appellant's use of the slab, he nevertheless had a duty to know about it, he was obliged to know about it. Reference was made to Peden v HM Advocate 2003 SCCR 605, and to health and safety legislation. The misdirection had caused a miscarriage of justice, and the second appellant's conviction should be quashed.

Submissions for the Crown in relation to the second appellant's appeal
[40] The advocate depute argued that the passage in the charge amounted to a direction that the jury had to be satisfied that the second appellant actually knew that the slab was being used by the other attacker, and that they were entitled to draw an inference about the state of the second appellant's knowledge from the circumstantial evidence. The trial judge had not directed the jury that the second appellant had a duty to know. He had not used the phrase "ought to have known". Peden was accordingly distinguishable to that extent, although the guidance given in the case was relevant. The appeal should be refused.

Discussion: the second appellant's appeal
[41] We agree with the advocate depute that Peden is distinguishable from the present case. In Peden there was a misdirection in that the jury were directed that an individual "ought to have known" something: in other words that in the circumstances he should have known or had a duty to know (even if he did not in fact know). By contrast in the present case the jury were directed that they could convict the second appellant on the basis of concert only if they were satisfied that the second appellant had actual knowledge at the relevant time that a slab was being used by the other attacker, and in that knowledge continued to participate in the attack. Properly construed, the charge so directed the jury, and permitted the jury (if so satisfied) to draw inferences about the state of the second appellant's knowledge from all the evidence including the circumstantial evidence. That was an entirely proper direction.

[42] In these circumstances we refuse the Second Ground of Appeal for the second appellant.

Decision

[43] For the reasons given above, both appeals against conviction are refused. We shall continue the appeals against sentence to a date to be fixed.