APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lady Paton Lord Reed	[2009] HCJAC 38 XC9/06 and XC18/06 OPINION OF THE COURT delivered by LORD REED in APPEALS AGAINST CONVICTION by WILLIAM JOHNSTON First Appellant; and CHARLES WOOLARD Second Appellant against HER MAJESTY'S ADVOCATE Respondent: _______

For the first appellant: Shead, Mackenzie; PDSO

For the second appellant: Scott, Solicitor Advocate; Adams Whyte

For the respondent: Prentice, QC, AD; Crown Agent

21 April 2009

Introduction

[1] During 2005 the appellants stood trial on an indictment which charged them with the murder of Grant McDonald ("the deceased") on 7 May 2005 at a public house in Edinburgh. On 2 December 2005 they were each convicted of the charge, subject to deletions made by the jury. The effect of the jury's verdict was to convict the first appellant in the following terms:

"you .... did assault (the deceased), seize him by the body and restrain him, punch him on the head whereby he fell to the ground, repeatedly punch him on the head and body, whereby he was so severely injured that he died on 8 May 2005 at the Western General Hospital, Edinburgh and you did murder him".

The second appellant was convicted in the following terms:

"you .... did assault (the deceased), repeatedly kick him on the head whereby he was so severely injured that he died on 8 May 2005 at the Western General Hospital, Edinburgh and you did murder him".

[2] The implication of the verdicts is that the jury rejected the contention, which had been advanced by the Crown, that the appellants had been acting in concert. They were convicted on the basis that each of them, by reason of the assault which he individually carried out, was guilty of the murder of the deceased.

[3] Against that background, a number of questions have been raised in these appeals. One is whether it was open to the jury to convict the appellants on the basis of their individual responsibility, the Crown having sought their conviction on the basis of concert. It is argued that, in doing so, the jury trespassed upon the jurisdiction of the Crown as "master of the instance". A second question is whether, in convicting the appellants on that basis, the jury in any event compromised the fairness of the trial. A third question is whether the trial judge's directions, so far as relating to causation, were adequate to enable the jury properly to arrive at the verdicts which they returned. A fourth question is whether, on the evidence relating to the cause of death, the jury's verdicts were such as no reasonable jury, properly directed, could have returned. A fifth question is whether the jury should have been directed that it was open to them to convict the appellants of attempted murder and, if so, whether the failure of the trial judge to give such a direction has resulted in a miscarriage of justice.

The Procedural History of the Appeals

[4] Before addressing these questions, however, it is appropriate to consider the procedural history of the appeals. The appellants were convicted and sentenced in December 2005. Their appeals were not heard until January 2009. Delays of a similar order have been noted in other recent decisions of this court, such as McCarthy v HM Advocate 2008 SCCR 902 and DS v HM Advocate 2008 SCCR 929. The reasons for the delay merit examination.

[5] Following conviction and sentence, grounds of appeal were lodged on behalf of the second appellant in April 2006. The first appellant eventually lodged grounds of appeal in September 2006, nine months after his conviction. In January 2007 each appellant was refused leave to appeal at first sift under section 107 of the Criminal Procedure (Scotland) Act 1995. In February 2007 leave to appeal was granted to each appellant at second sift. During the same month the Crown made an application to the court under section 94 of the 1995 Act for the transcription of the evidence given at the trial by a forensic pathologist, Professor Harrison. The application was granted. A procedural hearing was then arranged, in accordance with rule 15.5A of the Act of Adjournal (Criminal Procedure Rules) 1996. It was to be held on 11 April 2007. In advance of the hearing a Form 15.5A-B was lodged on behalf of each appellant, stating that the appeal was not ready to proceed to a hearing as the transcript of the evidence given by Professor Harrison had not yet been received. The case was then removed from the roll.

[6] A procedural hearing was next fixed for 24 May 2007. In advance of that hearing, a Form 15.5A-B was lodged on behalf of the second appellant in which it was said that the appeal was ready to proceed to a full hearing. A minute was then prepared and signed by a Depute Clerk of Justiciary, recording that the court had withdrawn the second appellant's appeal from the Procedural Hearings Roll and had directed

"that a diet be assigned [for the hearing of the appeal] during the Appeal Court Sitting commencing on the 9^th July 2007 on any suitable date after consultation with the Appeals Manager".

Notwithstanding that minute, the appeal was not heard, as we have explained, until January 2009. The reasons for the delay relate entirely to the progress (or, rather, lack of progress) of the first appellant's appeal.

[7] The form lodged on behalf of the first appellant in advance of the procedural hearing fixed for 24 May 2007 stated that the appeal was not ready to proceed to a hearing, as the defence was investigating additional evidence that had come to light since the conclusion of the trial, and the transcript of Professor Harrison's evidence had not yet been received. It was said that eight weeks would be required to carry out the necessary work. We observe, in relation to the first of these points, that none of the grounds of appeal concerned fresh evidence. The investigation of additional evidence would not appear to have had any relevance to the appeal, the scope of which was defined by the grounds of appeal for which leave had been granted. In the light of the form, however, the case was removed from the roll.

[8] A procedural hearing of the first appellant's appeal was next fixed for 25 July 2007. In advance of the hearing, a form was lodged which was in identical terms to the form that had been lodged in May. Again, nothing was said to indicate the nature of the additional evidence being investigated or its relevance, if any, to the appeal; nor was there any explanation of the failure to complete the investigation within the eight week period which, in May, had been said to be required. It was again said that a further eight weeks would be required. In the light of the form, the case was again removed from the roll.

[9] A procedural hearing of the first appellant's appeal was next fixed for 19 September 2007. The form lodged in advance of the hearing again stated that the defence was investigating additional evidence that had come to light since the trial. Again, no information was given as to what it was, what relevance it might have to the appeal, or why the investigation had not been completed within the time already allowed. The form added that transcripts of the pathology evidence had now been made available, but that "an application to request that additional parts of the evidence be transcribed is being considered by counsel". It was not explained what the evidence in question was, what relevance it might have to the grounds of appeal, or why this matter was only then being considered for the first time. The form also stated that the Crown had been asked "to confirm that full disclosure has been made" and that no response had yet been received. It was not explained what relevance "full disclosure", whatever that might mean, had to the grounds of appeal (none of which concerned disclosure), or why the matter was only then being raised for the first time. It was said that a further eight weeks would be required. In the light of the form, the case was again removed from the roll.

[10] A procedural hearing was next fixed for 25 October 2007. The form lodged in advance of the hearing repeated that additional evidence was being investigated, without any indication of what it might be or what bearing it might have on the grounds of appeal. The "disclosure" point was again made, without any specification of what it might relate to or how it might bear on the grounds of appeal. Another period of eight weeks was said to be required. In the light of the form, the case was again removed from the roll.

[11] A procedural hearing was next fixed for 14 December 2007. By then, two years had passed since the appellants were convicted and sentenced. The form lodged in advance of the hearing repeated, yet again, that the defence was investigating additional evidence and that the Crown had been asked to confirm that "full disclosure" had been made. The form also stated that "an application for further transcripts will be lodged on behalf of the appellant in early course": this was the matter which, according to the form lodged in September, counsel had then been considering. It was also said that counsel would require to consult with the first appellant. A further six weeks were said to be required. On this occasion, for the first time, the procedural hearing went ahead before a judge: presumably the Crown had objected to the case being removed from the roll. The minute records that, "in respect that it was stated there was to be a further application for transcripts and consideration was being given to the lodging of an additional ground of appeal", the court directed that a further procedural hearing be assigned in February 2008, "this being a final continuation". The court also directed that the next (and supposedly final) procedural hearing should be "assigned along with co-appellant".

[12] On 19 December 2007 an application under section 94 of the 1995 Act was lodged on behalf of the first appellant, seeking transcription of the speeches made to the jury on behalf of each of the appellants and of the evidence of the first appellant. The application was granted on 7 January 2008. Legal aid was then applied for in order to meet the cost of transcription. It was granted on 24 January 2008.

[13] A further procedural hearing was fixed for 14 February 2008. The form lodged in advance of the hearing stated that the transcripts were not yet available. For that reason, the appeal was said not to be ready to proceed. A further four weeks were said to be required. In the light of the form, the case was removed from the roll. In consequence, the matter did not come before a judge, and those acting on behalf of the second appellant were not heard.

[14] A procedural hearing was next fixed for 5 March 2008, but did not proceed due to pressure of business. A procedural hearing was then fixed for 11 March 2008, and proceeded before a judge. The second appellant was not represented. The court was advised that one of the tapes recording the speech made to the jury on behalf of the second appellant could not be located. The court suggested that attempts be made to obtain counsel's own notes of the speech.

[15] A further procedural hearing was fixed for 8 April 2008 but did not proceed. According to the minutes, that was because the Form 15.5A-B had not been lodged, and also because of "there being insufficient judicial resources to call the procedural hearing in the Appeal Court".

[16] A procedural hearing was next fixed for 24 April 2008. The form lodged in advance of the hearing stated that counsel had instructed (sic) that an application be lodged for the transcription of the speech made to the jury on behalf of Gary Gilchrist, a co-accused who had been acquitted, and of the speech made on behalf of the Crown. A further six weeks were said to be required. Following an exchange of e-mails between Justiciary Office and Crown Office, in which the Crown confirmed that they had no objection to the withdrawal of the case from the roll, the case was removed from the roll. On 24 April 2008 legal aid was granted to meet the cost of obtaining the additional transcripts. On 3 June 2008 an application was received for transcription under section 94 of the 1995 Act. It was granted the following day. It emerged however that the tape which recorded the speech on behalf of the Crown was missing.

[17] A procedural hearing was next fixed for 24 June 2008 and proceeded before a judge. The court was told that it was hoped that the difficulty arising from the missing tape was capable of being resolved. The court directed that a further procedural hearing should be assigned.

[18] A procedural hearing was next fixed for 6 August 2008. The form lodged in advance of the hearing stated that parties had gone as far as they could in relation to transcription, but that it was "desired to consult to review all the outstanding issues". No indication was given of what these outstanding issues might be, or of why they remained outstanding after all the time that had passed. A further two weeks were said to be required. There followed an exchange of e-mails between Justiciary Office and Crown Office, in which the Crown confirmed that they did not insist on the case calling, but wished it to call on the next occasion along with that of the second appellant. The case was then withdrawn from the roll.

[19] A procedural hearing was next fixed for 4 September 2008 and proceeded before one of the members of this court. This was the fourteenth time a procedural hearing had been fixed. The court was told, on behalf of the first appellant, that two matters remained outstanding. The first was a question of disclosure: it was said that that could not be resolved until the Judicial Committee of the Privy Council had issued their decision in the case of McDonald v HM Advocate 2008 SCCR 954 (in which, in the event, the judgments were issued on 16 October 2008). Secondly, there was said to be a potential additional ground of appeal, consideration of which had not been completed. A further two weeks were said to be required. The court refused to allow any further time, observing that the scope of the appeal was defined by the grounds of appeal which had been allowed to be argued, and that the appeal was therefore ready to proceed. Concern was expressed about the delay which had occurred, and in particular about the position of the second appellant, who had been ready to proceed since May 2007. The court directed that a diet should be assigned for a full hearing of both appeals as quickly as possible. In the event, that hearing proceeded in January 2009, as we have explained. By that time, more than three years had elapsed since the appellants were convicted and sentenced.

[20] It is necessary finally to record that, at the hearing of the appeal, each member of the court was provided with several hundred pages of transcript of the evidence of the first appellant and of the speeches to the jury. The cost to the public purse of the transcription, and of photocopying the transcripts, will have been substantial. No reference was however made during the hearing to any of those transcripts. The only document to which reference was made on behalf of the first appellant was the trial judge's charge to the jury. Counsel for the second appellant, and the Advocate Depute, referred in addition to the transcript of Professor Harrison's evidence. The appeal was argued on the basis of the grounds of appeal which had been lodged in 2006. All of the documents referred to had been available since July 2007.

[21] This history discloses an unsatisfactory state of affairs. The waste of time and public resources is all the more regrettable when it is borne in mind that the second appellant had to wait for about eighteen months to have his appeal heard in consequence of the indulgence of the requests for continuations made on behalf of the first appellant. It is apparent from such cases as McCarthy v HM Advocate and DS v HM Advocate that this is not an isolated problem.

[22] Procedural hearings were introduced by the Act of Adjournal (Criminal Appeals) 2002 (SSI 2002 No 387) in order to improve the efficiency with which appeals were processed. It had become increasingly common for applications to be made at a late stage for the adjournment of appeal hearings, typically on the ground that counsel had only just been instructed or that the preparation of the appeal had not been completed. In consequence, the timetable of the Appeal Court had suffered disruption, and proper use had not been made of the available court resources. A further problem was that some appeals were not completed within the time available and required to be continued, resulting in substantial delay. The 2002 Act of Adjournal attempted to address these problems by enabling the Clerk of Justiciary to fix "a procedural hearing for the purposes of determining whether the parties are ready to proceed to a hearing of the appeal". In advance of such a hearing, the appellant is required to lodge a notice in Form 15.5A-B, signed by the counsel or solicitor advocate representing him in the appeal, or by the appellant if he intends to conduct the appeal himself. The purpose of the form is to provide the court with the answers to the following questions:

1. Is the appeal ready to proceed?

2. Who is the nominated counsel?

3. When is the nominated counsel available during the appeal sitting

dates?

4. What is the estimate of court time required to deal with the appeal?

5. (a) If the appeal is not ready to proceed, what are the reasons and what is the current position?

(b) How much time is required to carry out the necessary work?

[23] Procedural hearings have succeeded in reducing the frequency with which appeal hearings do not proceed or require to be continued. It is however apparent that they have been attended by the introduction of new problems, which are illustrated by the present case, and also by the cases of McCarthy v HM Advocate and DS v HM Advocate. Our impression is that there are a number of reasons for these problems.

[24] The first is the practice of withdrawing procedural hearings from the roll when it is said in the Form 15.5A-B that the appeal is not ready to proceed. As we have explained, numerous procedural hearings in the first appellant's case did not proceed because a decision was taken to remove the case from the roll in view of the terms of the Form 15.5A-B, after seeking the views of Crown Office. The consequence of those decisions was that, for prolonged periods of time, there was no judicial oversight of the progress of the appeal. The basis of such decisions appears to be rule 15.5A(5):

"Where the appellant has lodged a notice in accordance with paragraph (4) [ie a notice in Form 15.5A-B], the Clerk of Justiciary, having considered the terms of the said notice and any representations made to him by the respondent, may determine that it is unnecessary to proceed with the procedural hearing and, if he so determines, shall intimate this to the parties not less than forty-eight hours before the date of the procedural hearing."

This provision has been interpreted as applying in circumstances where it

is said that the appeal is not ready to proceed. In considering whether that interpretation is correct, it is however also necessary to consider rule 15.5A(6):

"Not later than seven days after the last day of the appeal court sitting during which

(a) the procedural hearing at which it has been determined that the appeal is ready to proceed has been heard; or

(b) the procedural hearing was due to be heard but in respect of which the Clerk of Justiciary has made a determination in terms of paragraph (5),

the Clerk of Justiciary shall fix and intimate to the parties the date when the appeal is to be heard."

The effect of rule 15.5A(6) is that, whenever the Clerk of Justiciary makes a determination under rule 15.5A(5), he must fix and intimate a date for the hearing of the appeal. The implication is that, in a case falling under rule 15.5A(6)(b), just as in a case falling under rule 15.5A(6)(a), the appeal must be ready to proceed: otherwise, the requirement to fix a hearing of the appeal would make no sense. It follows that the Clerk of Justiciary can only make a determination in terms of rule 15.5A(5) on the basis that the appeal is ready to be heard. That interpretation is supported by the terms of the notice which the Clerk of Justiciary is required by rule 15.5A(3) to send to the parties in advance of the procedural hearing. It states:

"In terms of Rule 15.5A(5), if the Clerk of Justiciary determines that the appeal is ready to proceed, you will receive a letter of confirmation from this office within 48 hours before the procedural hearing confirming that no appearance is required. Thereafter you will be advised of the date for the Appeal Court hearing. However should you not lodge the form, lodge it partially completed, or advise that the Appeal is not ready to proceed, you will require to instruct counsel for the procedural hearing."

The implication of the last sentence is that, if the form states that the appeal is not ready to proceed, the procedural hearing will go ahead. If, on the other hand, the form states that the appeal is ready to proceed then, as the first sentence indicates, the Clerk of Justiciary may decide that no appearance is required: indeed, the first sentence equiparates a determination under rule 15.5A(5) that (in terms of the rule) "it is unnecessary to proceed with the procedural hearing" with a determination that "the appeal is ready to proceed." Our conclusion, accordingly, is that where the form states that the appeal is not ready to proceed, the intention of the Act of Adjournal is that the procedural hearing should go ahead, with the court then deciding whether the appeal should proceed to a full hearing or whether further time (and, if so, how much time) should be allowed.

[25] When the court takes such decisions, it will not grant continuations as a matter of course whenever the appellant states that the appeal is not ready to proceed and the respondent is content that further time should be allowed. In the first place, the court has a responsibility to ensure that appeals are heard within a reasonable time, whatever the attitude of the parties to the appeal may be. Secondly, the court's attention will be focused on the grounds of appeal: it will not ordinarily agree to continuations designed to allow additional investigations to be carried out, unless those investigations are related to the grounds of appeal. In that regard, we would reiterate what was said by the court in the case of McCarthy at paragraph 13:

"[I]f the system of appeals in terms of the current legislation is to operate with some degree of efficiency, then an appellate court must focus its attention on what the grounds of appeal, for which leave has been given, actually are. It will ordinarily wish to encourage the appeal to proceed with expedition to a full hearing on these grounds and, in the absence of an application to amend the grounds, these grounds alone."

[26] A second reason for the delays in the hearing of appeals is a tendency to treat the grounds of appeal which have been allowed to proceed under section 107 of the 1995 Act as merely an opening gambit, following which those acting on behalf of appellants can then investigate, over a period of years if need be, the possibility that additional grounds of appeal might be discovered. This tendency has been accommodated by the practice of routinely withdrawing cases from the procedural hearings roll whenever a continuation is requested. Commonly, as in the present case, this process of investigation is said to require the transcription of the proceedings at the trial. All too often, as in the present case, it yields no useful results, and merely delays the hearing of the appeal (and even, as happened in the present case, the hearing of another person's appeal). We would again draw attention to what was said by the court in the case of McCarthy at paragraph 13, immediately after the passage which we cited earlier in which the role of the court was discussed:

"Equally, those representing an appellant have to be trusted to apply themselves to the proper expedition of the appeal on the grounds for which leave has been granted and to complete any necessary preparations in advance of procedural hearings as distinct from using the existence of these hearings to request time upon which to embark upon expeditions unrelated to the permitted grounds or to carry out additional work which could have been performed in advance of the appointed diet"

[27] Finally, in relation to these procedural aspects of the appeals, we would observe that one of the underlying causes of the problems we have discussed is the practice of instructing, for the purposes of the appeal, a different counsel from the one who conducted the trial. There are, of course, cases (such as Anderson appeals) where that is unavoidable. Frequently, however, as in the present case, there is no evident reason for the change in counsel. This is a change in practice: until relatively recently, it was customary that counsel who had represented an accused person at his trial would also present any appeal. The advantages of that practice are considerable. Counsel who appeared at the trial is familiar with the evidence and with the way in which the case was presented. He or she knows what the real issues were at the trial; what instructions were given by the appellant at every stage: in short, what happened at the trial, and why it happened in the way that it did. Counsel who is instructed for the first time after the trial has none of these advantages. In such circumstances, the tendency to treat the grounds of appeal prepared in the immediate aftermath of the trial as merely an opening gambit, following which the case has to be investigated de novo by the newly instructed counsel, is not entirely surprising. Equally, it is perhaps unsurprising that counsel in that position may prefer to have the trial proceedings transcribed, rather than relying on another counsel's notes. All too often, however, such exercises have unfortunate results: grounds of appeal which bear no relation to the reality of the trial but, as has been said, smell of the lamp (Johnston v HM Advocate 1997 SCCR 568 at page 574 per Lord Justice General Rodger); transcriptions of proceedings, and recoveries of evidence, which prove to be "expensive distractions from what was ultimately relevant" (McCarthy at paragraph 13); delay in the hearing of the appeal: in short, "a waste of time and resources" (DS v HM Advocate at paragraph 27). These problems are illustrated in the present case, as we have explained, by the appeal of the first appellant. On the other hand, the present case also illustrates the advantages of continuity of representation. The problems which we have discussed were not a feature of the second appellant's appeal. The counsel who was instructed on behalf of the second appellant, at least until the stage when the appeal was said to be ready to proceed, was the counsel who had represented him at the trial (by the time however when the appeal was finally heard, that counsel had become an Advocate Depute, and other representation was arranged). Equally, the fact that the Crown was represented at the hearing of the appeal by the Advocate Depute who had conducted the trial was of assistance to the court, as he was familiar with the evidence and the issues, and understood how the trial had been conducted by the Crown and the defence.

The Circumstances of the Case
[28] It is convenient at this point to summarise in broad terms the circumstances of the case, including the evidence so far as relevant. We base this summary on the report of the trial judge and the written submissions of the Advocate Depute (which, in relation to this matter, were not contentious). We shall at a later point discuss the evidence relating to the cause of death in greater detail.

[29] On the evening of 7 May 2005 the appellants were in the Waverley Inn, Southhouse Broadway, Edinburgh. They were drinking with a number of other men, who included William Johnston, senior (the first appellant's father), and Gary Gilchrist. The deceased was also in the bar, drinking with a man named Craig Lumsden. During the course of the evening there were a number of arguments between these two groups of men, which culminated in violence. The first appellant in particular knocked the deceased to the floor and then delivered eight powerful punches to his head. The deceased was unresponsive to the blows and never regained consciousness. Immediately after the punching his pallor appeared to have changed, his eyes were open and moving but his body did not move. The first appellant then left the deceased and joined in an attack on Lumsden. The second appellant, who had been involved with Lumsden, then went to where the deceased was lying unconscious on the floor and delivered a powerful kick to the deceased's head, as if he were taking a penalty kick with a football. There appears to have been evidence that more than one kick was delivered; and the jury appear to have accepted that evidence, since they convicted the second appellant of having "repeatedly" kicked the deceased on the head. The entire incident lasted two and a half minutes. The deceased was treated at the scene by ambulance personnel, who found that he was still alive. He was taken to hospital, where he was declared dead the following day.

[30] Following investigation, the appellants, William Johnston, senior, Gilchrist and a fifth man, Lee Gilhooley, were indicted on charges of assaulting Lumsden and murdering the deceased. The first charge, concerning the assault on Lumsden, was directed against all five accused. The second charge, concerning the murder of the deceased, was directed against all the accused except Gilhooley. During the course of the trial, the Crown withdrew the libel against Johnston, senior and Gilhooley. The appellants were each found guilty of murdering the deceased, as we have explained. They were also convicted of assaulting Lumsden, but we are not concerned with that aspect of the convictions. Gilchrist was acquitted of both charges: the Crown case against him had depended on establishing concert.

The Crown as Master of the Instance

[31] The first argument advanced in support of the appeals was that, since the Crown had presented the case to the jury on the basis of concert, and the jury had rejected that contention, it was not open to the jury to convict the appellants on the basis of their individual responsibility. The role of the Crown as master of the instance constrained the jury as to the verdicts they could return: Buchanan v Hamilton 1989 SCCR 398.

[32] Prosecutions on indictment are said to be brought at the "instance" of the prosecutor. They may in certain circumstances be brought at the instance of a private individual, with the concurrence of the Lord Advocate. More commonly they are brought at the instance of the Lord Advocate, as in the present case, where the indictment informed the accused:

"you are indicted at the instance of the Right Honourable Colin David Boyd, Queen's Counsel, Her Majesty's Advocate".

The Lord Advocate is said to be "master of the instance". Hume discusses the meaning of the expression in his Commentaries on the Law of Scotland Respecting Crimes (at Vol II, pages 133-134 in the 4^th edition). After explaining that the Lord Advocate can prosecute without the concurrence of the complainer, Hume continues:

"As the Lord Advocate's instance is thus, in one sense, independent of the party injured; so is it also in this other sense, that it is absolutely under his own management and disposal, as to the seasons and occasions when, and the mode wherein, or the effect to which he shall use it. In none of these points can any individual, or even the Supreme Court, pretend in anywise to control or superintend him ......

The Lord Advocate is master of his instance in this other sense, that even after he has brought his libel into Court, it is a matter at his discretion, to what extent or effect he will insist against the pannel; and he may freely, at any period of the process, before return of the verdict, nay after it has been returned, restrict his libel to an arbitrary punishment, in the clearest case even of a capital crime."

[33] The discussion in Alison's Practice of the Criminal Law of Scotland at pages 87-88 is to the same effect:

"3. The Lord Advocate cannot be compelled to give his instance, or to pursue in his own name for the public interest.

......

4. The Lord Advocate is so completely master of his libel that he may pass from any charge at pleasure, or restrict the libel to an arbitrary punishment at any time before moving for sentence."

Alison explains (at pages 88-90) that the Lord Advocate possesses the power to pass from any charge, or any aggravation of a charge, at any time before moving for sentence, and can also make deletions from the libel without departing from the charge. The power is described by Alison as a mitigating power.

[34] More recently, an explanation of the expression in the context of modern practice was given by Lord Hope of Craighead in Montgomery v HM Advocate 2001 SC (PC)1 at pages 18-19:

"The fundamental rule on which the system of criminal justice in Scotland is based is that the Lord Advocate is, as it is put, 'the master of the instance'. ... Three examples may be given of the application of this rule in practice. The first, which is indicated by the passage which I have quoted from Hume's Commentaries, is that the court has no power to pronounce sentence where the verdict is guilty unless the prosecutor, who acts under the authority of the Lord Advocate, moves for sentence: Hume, vol II, at pp 470, 471; Paterson v HM Advocate 1974 JC35 ......

The second example is that which is to be found in secs 118 and 119 of the Criminal Procedure (Scotland) Act 1995, which deal with the situation where the Appeal Court is of the view that a verdict of guilty by the trial court should be set aside and there should be a new trial. The way in which this form of disposal is expressed in the statute is that the court may 'grant authority' to bring a new prosecution. The court does not, as in England under sec 7 of the Criminal Appeal Act 1968 as amended by sec 43 of the Criminal Justice Act 1988, 'order' that there shall be a new trial. The question whether or not a new prosecution should be brought is a matter which lies entirely within the discretion of the Lord Advocate. The third example may perhaps best be illustrated by the fact that all applications to the courts of summary jurisdiction in criminal matters are made by the procurator fiscal, who acts on the authority of the Lord Advocate, and not by the police."

[35] There does not appear to us to be any conflict between the role of the Lord Advocate, as described by Hume and Alison and by Lord Hope in the Montgomery case, and the verdict of the jury in the present case. In terms of the indictment, it was open to the jury to convict each of the accused of murder either as actor or on the basis of concert. In presenting the case to the jury on the basis of concert, the Advocate Depute was not exercising the Lord Advocate's mitigatory power; nor was he departing from any charge or from any aggravation, or restricting the libel in any respect. The fallacy in the appellants' argument is that it confuses the approach which the Crown invited the jury to take to the evidence, in order to convict the appellants of murder, with the charge which the Crown brought against the appellants and on which the jury's verdict was sought.

[36] The case of Buchanan v Hamilton appears to us to be concerned with a different question, namely the circumstances in which it is permissible for an alternative verdict to be returned without such a verdict having been expressly sought by the prosecutor. The case was one in which the appellant had been charged on summary complaint with a statutory offence of vandalism: the libel alleged wilful and reckless damage to the front door of a house by striking it with an axe. The sheriff found that there was insufficient evidence to establish that the door had been damaged, and therefore that the appellant could not be convicted of the statutory offence. Instead, ex proprio motu he found the appellant guilty of breach of the peace by banging on the door of the complainer and by brandishing an axe. In doing so, he relied on a statutory provision (currently to be found in paragraph 14(b) of Schedule 3 to the 1995 Act) that "where the facts proved under the indictment or complaint do not amount to a contravention of the enactment [scil. the enactment allegedly contravened], but do amount to an offence at common law, it shall be lawful to convict of the common law offence". On appeal, the court declined to express any concluded opinion as to the competency of the conviction of breach of the peace on the charge of vandalism, but held that the sheriff had proceeded in a manner which he was not entitled to follow, stating (at page 400):

"This was a case in which the Crown did not invite him to return the conviction of breach of the peace which he did, and since the Crown is master of the instance, it was not for the sheriff on his own motion to decide to convict the appellant of a charge which he was not invited to consider by the prosecutor."

It is to be noted that the factual ingredients of the offence of which the sheriff had convicted the appellant were not narrated in the libel. If the Crown had wished to seek a conviction of the common law offence, it would have required to amend the libel (cf Markland v HM Advocate (1891) 18R (J) 50). It was not open to the sheriff to amend the libel at his own hand, or without amendment to convict the appellant of an offence the species facti of which were nowhere to be found in the complaint.

[37] The case of Buchanan v Hamilton might be compared with Brannon v Carmichael 1991 SCCR 383, where the appellant had been charged on summary complaint with attempting to rescue her brother from the custody of constables by pulling the constables away from him, contrary to section 41(1)(b) of the Police (Scotland) Act 1967. The sheriff found that the mens rea of that offence had not been established, but ex proprio motu amended the charge to one of obstructing the constables, contrary to section 41(1)(a) of the 1967 Act, and convicted the appellant of the amended charge. The conviction was quashed on appeal, the Crown conceding that the sheriff had acted incompetently in purporting to alter the terms of the charge at his own hand.

[38] It is clear from Buchanan v Hamilton and Brannon v Carmichael that it is not open to a sheriff or a jury to convict of an offence the species facti of which are not libelled, in the absence of an application by the prosecutor to amend the libel: to do so would impinge upon the prosecutor's responsibility for the terms of the charge against the accused. That does not however imply that it is never open to a sheriff or a jury to return a verdict of guilty which is different from the verdict sought by the prosecutor when he addresses the court at the conclusion of the trial. It may in particular be open to the sheriff, or to the jury, to return an alternative verdict. The general rule stated by Hume (at ii. 449) is:

"To authorise a sentence, the verdict must make a return of that species of guilt which is charged in the libel, and which alone has been remitted to the knowledge of the assize."

That general rule is however qualified:

"[I]t is, however, an exception to the general rule above mentioned (and in this our practice agrees with the English) that a verdict is good, if it convict the pannel of an offence nearly related to that in the libel, and which only differs from it in being a lower mode or degree of the same sort of crime. In which relation stand culpable homicide, murder, and parricide; theft and housebreaking; and perhaps assault and hamesucken, and some others. As mentioned formerly, in treating of the style of libels, our practice supposes, and perhaps, on the whole, with good reason, that one who is indicted for the higher species of crime, comes prepared with his defences, not only against the aggravating circumstances of the charge, but against the fundamental fact also, (homicide, theft, assault, or whatever it be) and every degree of guilt which may thence be inferred against him. By the same rule, therefore, which allows the prosecutor in such cases to restrict his libel to a charge of the lower crime; judgement shall pass on a verdict in this form, or which returns facts of this character, though the libel have not undergone any such restriction. There have been many judgments to that purpose, on verdicts convicting of culpable homicide, in pursuance of a charge of murder"

(Hume, ii. 450-451).

[39] Under the common law, therefore, the principle that the jury could convict of an offence which was close to the offence in the libel, and differed only in being a lower mode or degree of the same sort of crime, was not regarded as conflicting with the Lord Advocate's control of the libel, but as being based on an analogous principle. The scope of the jury's power to convict of a lesser offence than that charged was nevertheless relatively narrow: it encompassed, for example, a conviction of culpable homicide on a charge of murder, or of theft on a charge of housebreaking, or of assault on a charge of hamesucken, but not of assault with intent to ravish on a charge of rape (see Alison's Practice, page 645). The scope for alternative verdicts has however been expanded by statute since the late nineteenth century: the history is discussed in Robertson v HM Advocate 1998 JC 213, and the relevant provisions are noted in Renton & Brown's Criminal Procedure at paragraphs 8-79ff. Such provisions have the effect of extending the jury's powers to return a modified verdict, by including in the indictment an implied averment of the alternative charge of which the accused may be convicted (McMaster v HM Advocate 2001 SCCR 517). Since the alternative charge is implicit in the indictment, it is not apparent why a conviction of that charge should be regarded as impinging upon the prosecutor's responsibility for the charges brought against the accused, even if the prosecutor has not expressly sought a conviction of the alternative charge in his address to the jury. On the contrary, authorities to the effect that it is in certain circumstances the duty of the court to draw an alternative verdict to the attention of the jury, even if it has not been mentioned by the prosecutor, are predicated on the view that the verdicts open to the jury, within the scope of the indictment and the evidence, are not circumscribed by the prosecutor's address to the jury. The point is illustrated by such authorities as Quinn v HM Advocate 1990 SCCR 254, Steele v HM Advocate 1992 JC 1, Robertson v HM Advocate, Meyl v HM Advocate 2005 SCCR 338 and Touati and Gilfillan v HM Advocate 2008 JC 214. In the recent cases of Ferguson v HM Advocate 2009 SCCR 78 and Hopkinson v HM Advocate [2009] HCJAC 9 the court expressed its agreement with the judgments in R v Coutts [2006] 1 WLR 2154, where it was held that the trial judge should have directed the jury about an alternative verdict notwithstanding united submissions on behalf of both the prosecution and the defence to the contrary. So far as the stance of the prosecutor was concerned, Lord Bingham of Cornhill said (at paragraph 12) that alerting the jury to the options open to it

"is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is ..... It is the ultimate responsibility

of the trial judge."

Lord Rodger of Earlsferry similarly observed (at paragraph 81):

"The stance of prosecuting counsel cannot be determinative of the range of verdicts fairly open to the jury on the evidence."

These dicta were considered in Ferguson and Hopkinson to reflect the position in Scots as well as English law.

[40] Returning to the circumstances of the present case in the light of this discussion, it is apparent that the decision in Buchanan v Hamilton, correctly understood, does not cast any doubt on the propriety of the jury's verdict. The appellants were charged with murder, and it was of murder that they were convicted. The factual basis on which they were convicted was as averred by the Crown in the charge, subject to deletions which the jury were entitled to make.

The Fairness of the Verdict

[41] It was next submitted on behalf of the appellants that, even if the verdicts open to the jury were not constrained by the approach adopted by the prosecutor in his address to the jury, it was in any event unfair for the jury to convict on a different basis from that on which the trial had been conducted. The submission was not however developed beyond that assertion.

[42] There can be no doubt, in principle, that the availability of a given verdict may be affected by considerations of fairness. That principle is well established in relation to alternative verdicts: see, for example, Allan v HM Advocate 1995 SCCR 234, Robertson v HM Advocate and R v Coutts at paragraph 24 per Lord Bingham. In the circumstances of the present case, however, there is no question of the verdicts having infringed the appellants' right to a fair trial. It was, in the first place, plain from the terms of the indictment that each of the appellants might be found guilty of murder either as actor or on the basis of concert. Secondly, as was accepted by counsel for the appellants, the position adopted on behalf of each of them throughout the trial was that they had not been acting in concert, and that their criminal responsibility, if any, should therefore be assessed on the basis of their individual actings. In his evidence, the first appellant admitted that he had punched the deceased repeatedly on the head, rendering the deceased unconscious, but claimed to have done so in self-defence, in a fight in which the second appellant had not been involved. He maintained that he had not been involved in any subsequent assault on the deceased by the second appellant. In his address to the jury, the first appellant's counsel invited the jury to proceed on that basis, and to find that there was no murderous intention but an assault which was justified by self-defence. He invited the jury to find that the subsequent actions of the second appellant constituted a separate assault, and that it was the latter assault which caused the death of the deceased. Although the evidence of the second appellant has not been transcribed, it appears from his counsel's address to the jury that he admitted assaulting the complainer Lumsden in self-defence, but denied assaulting the deceased or being involved in any assault on the deceased by the first appellant. In his address to the jury, counsel for the second appellant invited the jury to proceed on that basis, and to find that it was the assault by the first appellant that had caused the death of the deceased.

[43] The approach adopted by and on behalf of the appellants was reflected in the directions given by the trial judge to the jury. In relation to the charge of murder, he reminded the jury that there had been various allegations:

"...... about punching on the one hand, kicking on the other or as the Crown would have you accept punching and kicking was part of some concerted attack .... On the other hand, it has been raised by the Defence that well, there's not really any concerted attack at all here and what's suggested is that there may be separate incidents, not just separate incidents between on the one hand charge one [the charge of assault on Lumsden] and the other charge two [the charge of murder], but in relation to for example charge two itself where it's suggested there were discrete events taking place, different things being carried out by different people at different times with different effects .....".

After discussing the evidence bearing on causation, the trial judge directed the jury that the question whether it was possible to differentiate between the injuries produced by punching or kicking was "an important matter for you to consider in relation to who may or may not be responsible for what". He continued:

"And in relation to the question of responsibility, one of the central features of the Crown case has been the concept of concert .... But if you ....are not satisfied that concert has been established, you could only convict each of the accused concerned of what he himself actually did. ...... You can only convict if concert is absent, if at all, of what each of the accused actually did himself .....The Defence say ..... what you are looking at at best was a series of separate, discrete events involving individual people ..... . If you do reach the conclusion that there was concert then the accused is responsible for what the others did ..... . If you can't or if you have any reasonable doubt about it, the accused is only guilty of what he himself did."

At a later point in his charge the judge reminded the jury of the position adopted on behalf of each of the appellants, dealing first with that of counsel for the second appellant:

"In essence [counsel] was saying that all three of the accused insofar as they were doing things were doing things independently of each other ..... . The way in which it was put was that there isn't any plan to attack [the deceased], there was no concerted attack ..... these are separate incidents .... . There was only one man who did anything to [the deceased] in essence and that wasn't [the second appellant]."

In relation to the position of counsel for the first appellant, the judge reminded the jury that it was accepted that the first appellant had punched the deceased, that he claimed to have been acting in self-defence, that this was said to have been a separate incident not forming part of a concerted attack, that what happened thereafter (ie the kicking) was said to be a completely separate assault, and that it was the second assault which was said to have caused death.

[44] It is apparent, in short, that the possibility that the appellants had not been acting in concert, but had been responsible for separate assaults, was a live issue during the trial. The approach of the defence was based on inviting the jury to reject the hypothesis of concert and to assess each appellant's criminal responsibility on the basis solely of his own actings. In these circumstances, the appellants cannot be said to have suffered any prejudice through the jury's convicting each of the appellants on the basis of his individual responsibility for his own actings.

The Evidence Relating to Causation

[45] Before addressing the remaining issues raised in this appeal, it is necessary to consider in greater detail the evidence relating to the causation of death. We have already summarised the evidence of eye-witnesses as to the nature and severity of the blows inflicted by each of the appellants on the deceased's head, and as to the deceased's response to the assaults. In addition to hearing that evidence, the jury had also watched a CCTV film on which the assault by the first appellant was recorded. The jury were also assisted by expert medical evidence.

[46] An autopsy had been performed by Professor Harrison and Dr Arango, and they gave evidence confirming the terms of their joint report. The certified cause of death was traumatic subarachnoid haemorrhage. The report, so far as material, stated that there were extensive areas of internal bruising beneath the scalp. It also noted that there had been previous surgery to an area of the skull, that that part of the skull was thinned as a result, and that that thin part of the skull had recently been fractured, without however any obvious underlying contusion. It concluded:

"1. Death has occurred as the result of acute hydrocephalus brought about by intracranial haemorrhage.

2. The haemorrhage appears to be subarachnoid in type ......

...

7. Multiple injuries together have caused the bleeding resulting in acute brain swelling which led to death. Several of [the] injuries might have caused the haemorrhage: it is not possible to state which single injury might have caused death. In particular the skull fracture is not associated with obvious macroscopic evidence of localised brain injury and so cannot be supposed to be either necessary or sufficient on its own to have caused death."

In his evidence in chief, Professor Harrison was asked about finding number 7, and said:

"It is not possible to state which single injury might have caused death .... I think we've got evidence externally of a number of episodes of blunt trauma .... . And really what I'm saying is out of all those injuries we cannot necessarily link them, cause and effect, and say did that trauma which is outside, is it associated with a particular injury inside the brain. We cannot say that particular injury, that was the fatal injury, that one wasn't. In other words we have a constellation of findings but that's probably as far as we can go in terms of trying to attribute cause and effect to any single episode .... . I think the, the injury that's led to death has been the haemorrhage in the brain and the associated brain swelling and any of the previous injuries may have contributed to that."

In this passage, as in others, we have corrected obvious errors in transcription. Professor Harrison also said in evidence in chief that a subarachnoid haemorrhage was often followed immediately by unconsciousness. It was however survivable, depending on its size and on the speed of medical intervention. The probability of death was likely to be higher if there was further trauma to the head after loss of consciousness. The cross-examination on behalf of the second appellant focused on evidence that the deceased had lost consciousness while being punched by the first appellant, and that his pallor had changed. Professor Harrison agreed that that evidence would be consistent with the deceased's having suffered a subarachnoid haemorrhage, but reiterated that the condition was potentially reversible. During cross-examination on behalf of the first appellant, Professor Harrison said that he could not say whether the subarachnoid haemorrhage had occurred by the time the punching incident ended. A "penalty kick" to the head might have caused the subarachnoid haemorrhage, but he could be no more confident about that than any other possibility.

[47] Evidence was also given by Dr Arango, but it has not been transcribed. We were informed that his evidence added nothing of significance to the terms of the report. Evidence was in addition given by Dr Smith, who had carried out a dissection of the deceased's brain. His evidence also has not been transcribed, and we were informed that it added nothing of significance to the present question.

[48] In short, therefore, it appears that the death of the deceased was the result of multiple injuries to the head. There was evidence that each of the appellants had inflicted severe blows to the head, one after the other, within a period of two and a half minutes. According to the expert evidence, it was impossible to single out any one of those blows as being the cause of death, or to exclude any one of them. Even if the haemorrhage which was the mechanism of death had been sustained before the final blow was struck, subsequent blows increased the likelihood that the haemorrhage would prove to be fatal.

The Directions Relating to Causation

[49] Counsel appear to have said little about causation in their speeches to the jury. Counsel for the second appellant reminded the jury of the evidence of Professor Harrison that the deceased's unconsciousness and pallor after the punching might be consistent with his having suffered the haemorrhage by that stage, but acknowledged that a subarachnoid haemorrhage could also be caused by kicking a person's head. Counsel for the first appellant reminded the jury that the medical evidence was to the effect that death had been caused by blunt force trauma, but that it was not possible to specify any particular blow which had caused death. Counsel suggested that the jury could differentiate between the punching and the kicking on the basis that the latter (it was suggested) had involved a greater degree of violence than the former, and was therefore more likely to have caused death.

[50] In his charge to the jury, the trial judge directed the jury that the function of the expert evidence in relation to causation was not to present them with ready-made conclusions, but to provide them with material upon which they could reach their own conclusions. The judge continued:

"Can I turn .... to deal with the question of causation, the cause and effect ... [I]t's suggested [by the defence] there were discrete events taking place, different things being carried out by different people at different times with different effects and in that context you have to try and assess whether the Crown have established an essential part of their case, namely of proving that the death of [the deceased] was caused by the assault that is libelled because as we have seen from the indictment it specifically narrates as part of the libel 'whereby Grant McDonald was so severely injured that he died'. That's a question for you to determine, ladies and gentlemen, and in doing that you have got to consider whether criminal responsibility has been brought home to each of the accused separately .... [I]n relation to causation how do you approach it? Well, you need to look to the evidence and you need to apply your common sense to matters and you've to look to the evidence of the medical witnesses who gave their account as to what happened."

The judge then summarised the medical evidence, concluding:

"So that in short ... means that it is not really possible on pathological grounds alone to differentiate between the injuries produced by a punch or by a kick and it is an important matter for you to consider in relation to who may or may not be responsible for what."

At a later point, the judge raised the possibility that the jury might conclude that the deceased had been killed by only one of two people, but were unable to decide which of the two. In that situation, the jury were directed to acquit both people unless they found concert to be established. That was a correct direction (cf. Docherty v HM Advocate 1945 JC 89). In the light of that direction, it must be inferred that the jury considered that the actings of both of the appellants had contributed to the deceased's death.

[51] At a subsequent point in his charge, the judge reminded the jury of counsel's submissions. In particular, he reminded them that counsel for the second appellant had maintained that the death of the deceased had been caused by the punches administered by the first appellant, whereas counsel for the first appellant had maintained that it was the kicking administered by the second appellant that had caused death. The judge concluded that part of his charge:

"There were two aspects to the issues about discrete and separate events. One related to whether there was anybody else involved in the punching incident and the second was whether anything that happened thereafter was part of that incident or whether it was, as [counsel for the first appellant] suggested, a completely separate assault that supervened. [Counsel for the first appellant] suggested that it was and that second assault was the one that caused death. So that is the causation issue if you like, the question as to whether or not, if there was an assault by [the first appellant], even if it wasn't justified by self‑defence and you weren't in any reasonable doubt about it, was it that assault or was it some other subsequent event that caused or contributed to Mr Grant McDonald's death."

[52] Before this court, these directions were criticised by counsel for the appellants as failing to give the jury adequate guidance as to how to approach the question of causation on the hypothesis that there were two separate assaults. Counsel did not however suggest what further directions might have been appropriate.

[53] In considering this submission, we note at the outset that it is not contended that the judge's directions in relation to causation were in any respect erroneous. As we have mentioned, it was made clear to the jury that, if they rejected concert, they had to consider the effects of each individual assault, and could only convict each of the appellants to the extent of his own individual responsibility. It was also made clear to them that, if they concluded that only one of the appellants had caused the death of the deceased, but they could not decide which, then neither appellant could be convicted of the killing. They were directed that they had to decide whether the assault by the first appellant had "caused or contributed to" the death of the deceased, or whether a subsequent event (ie the kicking by the second appellant) had caused or contributed to his death. These directions were accurate in law, and they covered the various possible bases on which the jury could convict of murder or culpable homicide if concert were rejected: namely, that death had been caused solely by the assault by punching, that death had been caused solely by the assault by kicking, or that each of the assaults had contributed to the death of the deceased.

[54] We consider, in particular, that the trial judge was correct in directing the jury that they required to consider, in relation to each assault, whether it had caused or contributed to the death of the deceased. It is not the case that a death can have only one cause: as Lord Reid remarked in Baker v Willoughby [1970] AC 467 at page 492, "it is a commonplace that the law regards many events as having two causes". The view that it is sufficient that an assault is a contributory cause of death is supported by the case of Malone v HM Advocate 1988 SCCR 498, which was another case where death had been caused by multiple blows to the head, and where it was not possible to distinguish between any specific blow or blows. The two appellants had assaulted the deceased in concert, then one appellant had broken off while the other continued to inflict further blows. The court rejected (at page 507) a submission that the appellant who bore no responsibility for the final blows could not be convicted of the killing, holding that since he bore responsibility for the earlier blows delivered in concert, and those blows could be considered to have materially contributed to death, he had been properly convicted. A similar approach had been adopted in the earlier case of Finlayson v HM Advocate 1979 JC 33, where it was argued that the discontinuance of life support treatment broke the chain of causation between the criminal act which had caused brain damage and the eventual death. The argument was rejected, the court stating (at page 35) that the effects of the criminal act were "a substantial and operating and continuing cause of the death". That form of words reflected the language used in the earlier English case of R v Smith [1959] 2 QB 35, to which the court had been referred. Reference might also be made to the very different circumstances of HM Advocate v Parker and Barrie (1888) 16 R (J) 5, where the court upheld the competency of an indictment charging the pilots of two ships with the culpable homicide of persons who had been on board one of the ships when a collision occurred as a result of separate acts of negligence by each of the pilots. Lord Justice-Clerk Macdonald referred (at page 9) to there having been "very many cases in which two persons, by separate acts committed at the same time, contributed to the unfortunate result of loss of life, involving them in the charge of culpable homicide".

[55] We also note that it has been held by the Court of Appeal in a series of cases subsequent to R v Smith that it is sufficient that the defendant's acts should have contributed significantly to the death of the deceased. These cases are of particular relevance as they include a consideration of the directions on causation which should be given to a jury. We refer, first, to a passage in the judgment delivered by Robert Goff LJ in R v Pagett (1983) 76 Cr App R 279 at pages 288 - 290:

"In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute .... Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result .......Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. ..... [I]n cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply."

That passage was adopted in R v Cheshire [1991] 1 WLR 844, which, like the case of Pagett, was concerned with improper medical treatment following an assault. Beldam LJ, delivering the judgment of the court, said (at pages 851-852):

"In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the defendant was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the defendant caused the death of the deceased adding that the defendant's acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result."

Beldam LJ added (ibid):

"It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the defendant's acts can fairly be said to have made a significant contribution to the victim's death. We think the word 'significant' conveys the necessary substance of a contribution made to the death which is more than negligible."

The judgment delivered by Schiemann LJ in R v Mellor (1996) 2 Cr App R 245, another case concerned with supervening negligence, is to the same effect. Finally, in R v Warburton and Hubbersty [2006] EWCA Crim 627 the Court of Appeal dealt with a case which was closer on its facts to the present case. It rejected a submission that

"where a person has died from a number of injuries caused by different people and the defendant has caused (or been a party to causing) only injuries 'A', then the defendant would not have caused the death unless the jury were sure that the deceased would have died from injuries 'A' on their own".

Hooper LJ, delivering the judgment of the court, cited (at paragraph 23) the decisions in Cheshire and Mellor, and observed that they

"stress that the test for the jury is a simple one: did the acts for which the defendant is responsible significantly contribute to the victim's death."

[56] The English decisions which we have cited are consistent with the approach to the law of causation adopted in the case of Malone. We also respectfully agree with their emphasis upon the importance of avoiding undue elaboration in the directions on causation that are given to a jury. Although the correct identification of the causal connection required by the law can in some contexts be a matter of difficulty (as has been illustrated, for example, by cases in the law of negligence concerned with industrial diseases), in the present context the law's requirement - that the wrongful act of the accused should have materially contributed to the death of the deceased - is not in doubt. Whether that causal connection has been established in a particular set of circumstances is a question to be determined by the jury, applying what the judge in the present case described as their common sense. As Lord Hoffmann observed in his 2005 Blackstone Lecture ("Causation", [2005] LQR 592, at pages 593-594) in relation to Hart and Honoré's Causation in the Law (2^nd ed, 1985):

"The great achievement of Hart and Honoré was to unpack the concept of causation when it is used, as the law uses it, to attribute responsibility for things that happen. They showed that when judges say that it is a matter of common sense, they usually mean that it accords with ordinary moral notions of when someone should be regarded as responsible for something which has happened ... They demonstrated that when the judges spoke of applying common sense, they were appealing to moral notions of what would fairly delimit the events for which a ..... defendant should be responsible."

These "common sense" principles, and the ordinary moral notions that they reflect, do not require to be explained to a jury. As Lord Justice-Clerk Thomson said in Blaikie v British Transport Commission 1961 SC 44 at page 49, in a passage which was adopted for the purposes of criminal law in MacAngus v HM Advocate [2009] HCJAC 8 at paragraphs 47-48, "the court is to be guided by the practical experience of the reasonable man". Deciding questions of causation on the facts of an unusual case may nevertheless be difficult, but it does not follow that the difficulty is one of law, on which a jury require to be directed. The causal connection required by the law may be perfectly clear (eg that the wrongful act of the accused should have materially contributed to the death of the deceased), and yet its application to the facts of the case may be a matter on which views may differ. As Lord Hoffmann remarked (at page 603):

"Applying [the standard criteria of causation] to the facts of the case may be difficult when there are borderline cases which may strike different people in different ways. But that is true of the application of many rules of law to the facts of the particular case."

[57] In the present case, as we have explained, the jury were directed, if they rejected concert, to consider causation on the basis that there were discrete events. They were told that the Crown had to prove, in relation to each accused, that the death of the deceased had been caused by the assault libelled, applying their common sense and considering the medical evidence. They were directed that the question was whether the assault under consideration had caused or contributed to the death of the deceased. The only criticism which might be made of these directions is that the judge did not specify that the contribution to death must be material or significant. In the circumstances of the present case, however, his omission of that qualification cannot be regarded as important. On the evidence, each appellant inflicted severe blows to the deceased's head, with (as the jury found) the intention or degree of recklessness required for murder. On the medical evidence, any of these blows was liable to have caused or contributed to the deceased's death. There was, realistically, no danger of the jury's convicting either appellant of murder on the basis of a contribution to death which the jury considered to be negligible.

The Reasonableness of the Verdict

[58] The next argument advanced on behalf of the appellants was that, in relation to each of them, the verdict was one which no reasonable jury, properly directed, could have returned. On the medical evidence, the jury could not reasonably conclude that death was caused by the cumulative effect of both assaults. It was possible that either assault by itself could have caused death. In relation to each appellant it was therefore impossible to say that, but for the assault for which he was responsible, the deceased would not have died when he did.

[59] The difficulty in the present case arises from the nature of a subarachnoid haemorrhage, as explained in the evidence. Although such an injury is the result of blows to the head, it may not be possible for a pathologist to express any definite opinion as to the connection between the haemorrhage and any particular antecedent blow to the head. In Fyfe v HM Advocate 1997 SCCR 602, where the same difficulty arose, the court concluded (at page 609):

"In any such case, therefore, the question whether the haemorrhage can be related to any particular assault must depend on the whole facts and circumstances."

The court also observed (ibid) that

"it is not necessary that there should be expert evidence expressed in a particular way to entitle the jury to draw the conclusion that the causal connection has been proved. The question whether the connection is proved must therefore be one to be determined by the jury on the whole of the evidence."

That approach was followed in Paxton v HM Advocate 1999 SCCR 895, where an analogous question had arisen.

[60] In the present case, the jury were not dealing with two assaults which were significantly separated in time or circumstances. On the evidence, the entire incident took place in one location and lasted two and a half minutes. Within that short space of time, the first appellant knocked the deceased to the floor and delivered eight powerful punches to his head, leaving the deceased lying unconscious, and the second appellant then kicked him on the head, delivering in particular a powerful "penalty" kick. Death was caused by a subdural haemorrhage resulting from multiple injuries. According to the evidence of Professor Harrison, any of the blows could have contributed to the fatal haemorrhage. It was possible that the haemorrhage had occurred solely as a result of the punches, but in that event the kicking was likely to have increased the probability that the haemorrhage would be fatal. It was also possible that the haemorrhage had occurred only after the "penalty" kick had been delivered.

[61] It was a matter for the jury, as judges of the facts, to decide whether on the whole of the evidence it had been proved beyond reasonable doubt that the actings of each appellant had contributed to the death of the deceased. The possibility that either the punching or the kicking was completely unrelated to the deceased's death was raised with them, and it was for them to consider it. There was before them the evidence as to the deceased's condition after the punching (unconscious, pallid, with his eyes open and moving), the evidence as to the severity of the subsequent kick, and the evidence that such a blow would have increased the probability of death even if the haemorrhage had already occurred. In the whole circumstances, we are unable to say that no reasonable jury could have returned the verdict which they did.

Attempted murder

[62] Finally, it was submitted that a miscarriage of justice had resulted from the failure of the trial judge to direct the jury as to the possibility of their convicting each of the appellants of attempted murder, in the event that they were satisfied that each appellant had assaulted the deceased with the state of mind required for murder, but were not satisfied that either assault had caused the death of the deceased. It was accepted that the possibility of such a verdict had not been raised at any point during the trial.

[63] The directions given to the jury in the present case canvassed possible verdicts of guilty of assault or assault to severe injury, of culpable homicide and of murder. The trial judge said, in particular:

"[Y]ou could find someone guilty of assault which is how [the charge of murder] starts off, with such aggravations as have been set out [ie severe injury] and proved by the Crown. If the assault caused death, it would be open to you to consider the question of was that a culpable homicide, was it a killing and was it culpable? If you are satisfied that the assault caused death, you could go on to consider the question of the allegation of murder but you could only convict in relation to that if you are satisfied that the accused concerned had the necessary criminal intent and that the essentials for murder had been established."

The implication of those directions was that, if the jury accepted that there had been an assault, but were not satisfied that the assault had caused death, they should convict of assault, or of assault to severe injury if that aggravation had been proved. We accept that a verdict of guilty of attempted murder would have been another possibility, subject to proof of the requisite mens rea.

[64] It has been said in the past that a trial judge ought to give a direction on a possible verdict which has not been raised by the Crown or the defence if such a direction is necessary in fairness to the accused: see eg Steele v HM Advocate at pages 3-4 per Lord Justice-General Hope; Allan v HM Advocate at page 236. At first sight, it might be thought that an omission to direct a jury as to a possible lesser verdict than the verdict which they returned could not give rise to unfairness, since, if the jury applied conscientiously the directions which were given to them in returning their verdict, they would not in any event have convicted the accused of the offence which the judge omitted to mention. That would however be a mistaken view: it has long been recognised, for example, that it may be unfair to the accused to leave the jury with a choice only between a conviction of murder and an acquittal, in circumstances where culpable homicide would be a possible alternative: see eg Muir v HM Advocate 1933 JC 46 at page 50 per Lord Sands. In R v Coutts, several of the speeches noted that, as Lord Rodger said at paragraph 88, a direction as to a lesser alternative verdict may be "necessary if the jury are to consider their verdict on the proper basis and to avoid the risk of being misled into an inappropriate verdict". In the words of Callinan J in Gilbert v The Queen (2000) 201 CLR 414 at paragraph 101:

"The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."

Furthermore, as Lord Bingham observed in Coutts at paragraph 23,

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of the trial counsel, any obvious alternative offence which there is evidence to support."

His Lordship added, at paragraph 24:

"It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial."

This court expressed agreement with those observations in Ferguson v HM Advocate at paragraphs 31 and 32.

[65] In the circumstances of the present case, it is not apparent to us that any unfairness to the accused would have resulted from directing the jury as to the possibility of a conviction of attempted murder: the mens rea of murder was already a live issue in the trial. In the absence of such a direction, the jury were liable to have convicted the appellants of assault to severe injury, in circumstances where a conviction of attempted murder would have been more appropriate. Such a conviction, in those circumstances, would not have secured the public interest that accused persons should be convicted of offences which they are proved to have committed. In the light of R v Coutts and Ferguson v HM Advocate, we conclude that a direction as to the possibility of a conviction of attempted murder ought to have been given.

[66] The question then arises whether the omission of such a direction has resulted in a miscarriage of justice. That question cannot be answered merely by observing that, since the jury must have been satisfied that the assaults had caused death, a conviction of attempted murder was never a practical possibility. That argument assumes that the jury's consideration of its verdict was unaffected by the omission: an assumption which cannot be made, for the reasons we have explained. Lord Rodger addressed a similar argument in the case of Coutts at paragraph 89:

"[Counsel] says that the additional choice is irrelevant since the jury convicted the appellant of murder and so they would never have reached the question of manslaughter, which only arose if they were not prepared to convict of murder. But that is to make an unreal assumption that, at all stages of their deliberations, the jury would keep the various issues in separate boxes, to be considered in a prescribed order. The reality is that, in the course of their deliberations, a jury might well look at the overall picture, even if they eventually had to separate out the issues of murder, manslaughter and accident. So, introducing the possibility of convicting of manslaughter could have changed the way the jury went about considering their verdict"

(see also per Lord Bingham at paragraphs 20 and 25). It is therefore necessary to consider the question in the light of the particular circumstances of the present case.

[67] The present case differs materially from cases such as R v Coutts and Ferguson v HM Advocate, where juries were faced with a stark choice between a conviction of murder and a complete acquittal, in circumstances where an intermediate verdict of culpable homicide was considered to have been available. In the present case, the jury were not faced with such stark alternatives: they had a choice between acquittal, conviction of assault, conviction of assault to severe injury, conviction of culpable homicide and conviction of murder. Given that range of possible verdicts, they convicted of murder. We do not consider that there is any realistic possibility that they would have been deflected from that verdict if they had been aware of one additional possibility, namely a conviction of attempted murder. On the contrary, we consider it reasonable to infer from the conviction of murder, in the circumstances which we have described, that the jury must have been satisfied not only that the assault committed by each appellant had been carried out with the intention or degree of recklessness required for murder, but also that the assault had caused the death of the deceased. In those circumstances, a conviction of attempted murder would not have been a realistic possibility. Furthermore, although a conviction of attempted murder was legally possible, it is relevant in the present context to bear in mind the difficulty which a jury was liable to have experienced in understanding or returning such a verdict in a situation where the victim of the assault had actually died. In such a situation, the obvious verdicts were either a conviction of assault to severe injury, or a conviction of culpable homicide or murder, depending on the view taken of the cause of death and the mens rea of the accused.

Conclusion

[68] In the circumstances we shall refuse the appeals against conviction.