APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Bonomy	[2010] HCJAC 94 Appeal No: NO. OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD BONOMY in the Appeal by ALEXANDER WOODSIDE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Richardson; Culley & McAlpine, Perth

Respondent: Allan, QC, A.D.; Crown Agent

29 September 2010

Introduction

[1] This is the third occasion on which the Court has considered this appeal. On 18 February 2009 the Court refused the appeal on the two grounds then argued, namely (1) that the solicitor advocate acting for the appellant ought not to have represented him in circumstances where he had a conflict of interest, and (2) that the defence at the trial was conducted incompetently by reason of certain alleged failures to cross examine witnesses, failures to call other witnesses and the absence of the appellant's solicitor advocate from part of the trial. On 26 June 2009 the Court refused the appeal so far as based on the ground that the trial judge misdirected the jury by failing to direct them that a verdict of guilty of culpable homicide was open to them. Consideration of the final ground of appeal relating to the Crown's failure to disclose statements made by the Crown witness Maureen Woodside, the appellant's mother, to the police on 20 January 1997 and 1 and 8 March 1998, which we now address, was deferred pending determination by the Supreme Court of the case of McInnes v HM Advocate [2010] UKSC 7, 2010 SCCR 286.

[2] In July and August 1998 the appellant was tried at Glasgow High Court on the following charge:

"On 17 January 1998 at Croftend Avenue, Croftfoot, Glasgow, near Lugar Place, you ALAN WILLIAM WOODSIDE, ALEXANDER WOODSIDE, DAVID CHARLES JUST and PATRICK STEVEN DOMINIC BOYLE did assault John Hampson....and chase him, throw a bottle at him which struck him on the head whereby he was knocked to the ground, strike him repeatedly on the head and body with knives or similar objects and did murder him".

On the third day of the trial the Crown accepted Just's plea of not guilty and Boyle's plea of guilty to assault by striking the deceased with a bottle. On 5 August 1998 the appellant and Alan Woodside were convicted as libelled. Alan Woodside was the appellant's elder brother. Patrick Boyle was married to the appellant's sister Maureen.

[3] In his Opinion of 18 February 2009 - see Woodside v HM Advocate [2009] HCJAC 19, 2009 SCCR 350 - the Lord Justice Clerk set out the material facts which we quote so far as relevant to the consideration of the present ground:

"The background

[4] In the late evening of Friday 16 January 1996 the appellant and Boyle went to a carry-out shop near Boyle's house. They encountered some youths who were members of a local gang. There was an exchange of incivilities and a fight broke out. The appellant had a broken bottle pushed into his face. He and Boyle escaped to Boyle's house.

[5] There was evidence from two of the youths that at the scene the appellant threatened revenge. Late that night, the appellant telephoned his mother and told her that he would "murder the bastard who slashed him."

[6] On the following evening the appellant, Alan Woodside, Just, Boyle, the appellant's cousin Stephen Richford, Michael Forbes and Jason Russell assembled in Boyle's house and armed themselves. When they heard that the gang were in the vicinity, they set off to confront them. Alan Woodside had a bayonet, the appellant had a camping axe, Just had a Rambo knife and Boyle had a bottle.

The incident

[7] The incident began when Boyle threw the bottle. It struck the deceased on the head and dazed him, and he fell over. There was evidence that Alan Woodside's bayonet was visible at that stage. The group rushed forward to attack. The deceased's friends ran away, leaving him isolated. The appellant's group surrounded him. Alan Woodside then stabbed him through the heart. The appellant was close to the deceased when he was stabbed. Meanwhile, Boyle chased after the deceased's friends.

The aftermath

[8] The appellant was seen to be carrying the axe shortly after the incident. On the following day, several of those involved met at the home of the appellant's parents to discuss the incident. According to the appellant's mother, the appellant made an incriminating admission as to his part in it. I shall refer to that as "the Sunday confession." On Monday 19 January, with the help of their father, Alan Woodside, senior, the appellant and Alan Woodside fled to Coventry. They were in hiding there until 25th January 1998 when they surrendered to the police....

[9] The appellant was detained at first in Longriggend Remand Institution (Longriggend). On the occasion of a visit by his parents and his girlfriend Kelly Ann Savage, according to his mother, he made a further incriminating admission. I shall refer to that as "the Longriggend confession."

[4] The Lord Justice Clerk also reflected the evidence of the eye witnesses Michael Forbes, Steven Richford and Jason Russell in these terms:

"Eye witness evidence for the Crown

Michael Forbes

[20] Forbes said inter alia that weapons were on show at the Boyles' house shortly before the incident. There was a discussion about revenge for the assault on the appellant. The appellant took out the axe from underneath a couch and put it inside his jacket. Alan Woodside had a bayonet and Just had a knife. As the group were leaving, Maureen Boyle gave Boyle a bottle. The appellant, the three co-accused and others walked up the street towards the deceased and his friends. Forbes described the attack and the stabbing of the deceased by Alan Woodside. He said that the appellant was "kind of away from it." The appellant was doing nothing at all and was standing next to Just. Mr Brown (solicitor advocate for the appellant) did not cross-examine Forbes.

Stephen Richford

[21] Richford said that Alan Woodside pulled out the bayonet as he rushed forward and that when the group left the scene the appellant had the axe. He drove the appellant, Alan Woodside, Just and Forbes to the appellant's house. When they arrived there, the appellant still had the axe.

Jason Russell

[22] Russell said that when he went to Boyle's house with the appellant, Alan Woodside, Just and Richford before the incident, the bayonet was lying in front of the television set. Later that night, Alan Woodside gave him the bayonet, which he thereafter threw into the Clyde. In cross-examination he said that he was in the appellant's parents' house for only a few minutes on the Sunday afternoon and that the appellant, Alan Woodside, his girlfriend Alicen Reid and Maureen Woodside came to his house between 6 pm and 7 pm that evening. That was the first time that he saw the appellant that day. This was relevant to the evidence that Mrs Woodside was expected to give".

Ground of Appeal

[5] The present ground of appeal is set out in the "Consolidated Grounds of Appeal" in seven paragraphs numbered 8-14 as follows:

"8. The Crown, in breach of its obligation, did not disclose to the appellant's legal representatives all evidence in its possession which was material to the appellant's defence.

9. At the time of the appellant's trial, the Crown had in its possession three police statements given by the appellant's mother, Maureen Woodside, of 59 Govanhill Street, Glasgow. These statements were dated 20 January 1997, 1 March and 8 March both 1998 respectively.

10. Details of the police statement dated 20 January 1997 were put to Maureen Woodside by the trial Advocate Depute during examination in chief (see the transcript of Maureen Woodside's evidence page 107B).

11. During the evidence she gave at the trial, Maureen Woodside gave evidence as to a confession allegedly made by the appellant on 18 January 1997 (see the transcript of Maureen Woodside's evidence page 114F to 117C).

12. None of the police statements given by Maureen Woodside make reference to this alleged confession.

13. If the police statements had been available to those representing the appellant they could have been used to undermine the Crown's case and were, therefore, material to the appellant's defence (see Sinclair v Her Majesty's Advocate 2005 1 SC (PC) 28 & 2005 SCCR 446 at paragraph 33).

14. The fact that those representing the appellant were unable to cross-examine Maureen Woodside using the police statements might possibly have affected the jury's verdict (see Holland v Her Majesty's Advocate 2005 1 SC (PC) 3 & 2005 SCCR 417, at paragraph 82)".

[6] The outcome of McInnes v HM Advocate was important in the context of this ground of appeal, as the Supreme Court clarified the test for a miscarriage of justice in the event of non-disclosure (see paragraph 14 and following below). It did not in any way alter the rule that was by then recognised that the Crown are bound to disclose all statements of the witnesses they intend to lead at the trial. The Advocate depute conceded that the relevant statements were not disclosed to the defence and ought to have been. Maureen Woodside was an important witness at the trial, and attacking her reliability and credibility was a major component of the appellant's case. The statement of 8 March 1998 was about a discrete matter and played no part in the hearing of the appeal. The others however were said to be material which would have been used by the defence as further ammunition for attacking the credibility and reliability of Maureen Woodside because of her failure to mention in either what she in due course said in evidence at the trial, namely that the appellant made a confession about his involvement in the attack on John Hampson in her house on Sunday 18 January 1998, the day after the murder.

Maureen Woodside's Evidence

[7] In his Opinion of 18 February 2009, the Lord Justice Clerk gave the following account of the evidence of Maureen Woodside and the defence attack upon her evidence.

"Maureen Woodside's Evidence

[23] Mrs Woodside said that the appellant telephoned her at about 1 am on Saturday 17th January. He told her of the incident at the carry-out shop and said that he wanted to 'murder the bastard who slashed him as nobody messed with the Woodsides.' She described the preparations for the incident that were made at Boyle's house on the Saturday evening.

[24] Mrs Woodside said that on Sunday 18th January, the appellant, Alan Woodside and several others gathered in her house to discuss the previous night's events. She and her husband and their younger children were present. Alan Woodside said that he had put a bayonet through the deceased and thought that he had killed him. The appellant said that perhaps it was he who had killed him because he had smashed the back of his head like a coconut. Just said that perhaps it was he who had killed the deceased because he had a knife. Mrs Woodside's evidence about the Sunday confession took the appellant's defence team by surprise.

[25] Mrs Woodside described the occasion on which she, her husband and Kelly Ann Savage visited the appellant at Longriggend. Her husband asked the appellant to tell the truth. The appellant told him in her presence that "he hit the boy on the back of the head with a hatchet" before the boy was stabbed.

......

[27] [In cross examination] Mr McSherry [junior solicitor advocate for the appellant] put to Mrs Woodside that she had a history of mental illness, of drinking and of taking amphetamines. She said that she went to the police in about March 1998 to complain that her husband was lacing her food and drinks with speed. She said that this conduct had begun in 1997 and that after 31 December 1997 she did not allow him to prepare her drinks. In March 1998 she reported this to her lawyer and to her doctor. She agreed that the appellant had left home when he was 16. She denied that he did so because of a dispute over the proceeds of a criminal injuries compensation award made to him. She said that she had put him out because of his relationship with Kelly Ann Savage, who was then under 16 years of age and was in Mrs Woodside's care. She denied the suggestion that the appellant had not telephoned her at all in the early hours of the Saturday.

[28] Mrs Woodside also denied the suggestion that the Sunday confession never took place. She gave a list of those present on that occasion, namely the appellant, Alan Woodside, Alicen Reid, David Just, Stephen Richford, Jason Russell, Maureen Boyle, Kelly Ann Savage, Robert Richford, his girlfriend Julie Ann Boyd, Alan Woodside senior and her younger children. She said that all of them would have heard what the appellant said. She denied the suggestions that the appellant was not even in her house that day and that she telephoned Kelly Ann Savage on the Sunday evening to ask where the appellant was. She said that on the Sunday evening the appellant and Kelly Ann Savage had gone to Jason Russell's house, that she had joined them there and then gone home, and that the appellant had later returned to her house.

[29] Mr McSherry challenged Mrs Woodside about the Longriggend confession. She said that the appellant made the confession during an extended visit. Kelly Ann Savage took up the first half of the visit. She and her husband took up the second, during which the appellant made the confession. She denied the suggestion that the appellant made no such remark. Mr McSherry put to her that she had used aliases to obtain catalogue goods. She admitted that she had done so once. She said that her husband had hit her with an axe on 1 January 1996. She said that the Sunday confession was made to her in the living room on the Sunday evening. She denied Mr McSherry's suggestion that she wished to incriminate the appellant so that she would never again be troubled by him."

Submissions for the Appellant

[8] In light of the concession by the Crown that the statements ought to have been disclosed, the debate before us was confined to the question whether the failure to disclose had resulted in a miscarriage of justice. Mr Shead for the appellant explained that, although the defence did not have the statements, they were aware that Maureen Woodside was likely to give evidence that the appellant confessed to her at Longriggend. However the evidence about the Sunday confession came as a complete surprise. Had the defence been in possession of the statements, they would have noted the striking inconsistency between the absence of any reference to the Sunday confession therein and the graphic account given in court. That contrast would have provided a platform from which to mount a further attack on the credibility and reliability of Maureen Woodside. Her evidence was of such significance in the case that, if shown to be unreliable, there was a real possibility that a different verdict would have been returned. The omission of any reference to the confession from these statements provided a strong basis for attacking her credibility and reliability with good prospects of success. The other evidence of the involvement of the appellant related to his conduct before and after the attack. The evidence of Maureen Woodside filled the gap between the two. Having regard to the way in which the trial was conducted, and in particular the attack by the defence upon the credibility and reliability of Maureen Woodside, the additional material would have had a major part to play in supporting the defence strategy which included, as one of its principal aims, undermining her evidence. That was because the solicitor advocate acting for the appellant, wrongly as it turned out, considered that there was insufficient evidence for conviction in the absence of her evidence about his confession. The confession was seen by him as vital to the Crown case.

[9] As Mr Shead developed his submission, he invited the Court to address in particular the prospect that, if a jury were persuaded to reject the evidence of Maureen Woodside, the likelihood was that they would return a verdict of guilty of culpable homicide rather than murder. The trial had taken place in 1998 prior to the clarification of the law of concert in murder in McKinnon v HM Advocate 2003 JC 29, 2003 SCCR 224. The clarification of the law had, in Mr Shead's submission, increased the likelihood that in the circumstances of this case a verdict of culpable homicide would be sought and returned. Any significant material which had a bearing on the evidence about the involvement of the appellant in the attack was likely to have influenced the jury's deliberations and decision on the case against him. Mr Shead referred to Touati and Gilfillan v HM Advocate [2007] HCJAC 73, 2008 JC 214, 2008 SCCR 211 as an example of a case broadly similar to the present in which a verdict of culpable homicide was ultimately substituted following quashing of the original murder conviction. He also indicated "a route" by which such a conviction could be arrived at in this case. Accepting, as he did, that there was sufficient evidence of the involvement of the appellant in the attack on the deceased from, in particular, the evidence of Forbes and Richford, the former of whom was not cross-examined, in the absence of the evidence of Maureen Woodside pointing to the use of the axe by the appellant, the evidence fell short of that necessary to convince a reasonable jury that it was foreseeable to the appellant that a weapon was liable to be used by one of the group to inflict serious injury.

[10] On the subject of the test that the court ought to apply in deciding whether there was a miscarriage of justice, Mr Shead founded strongly on the speeches of Lord Hope and Lord Rodger in Sinclair v HM Advocate 2005 SC (PC) 28, 2005 SCCR 446, 2005 SLT 553, especially their statements at paragraphs 34 (Lord Hope) and 43 (Lord Rodger) that the failure to provide the defence with statements of a Crown witness which could have provided material assistance in undermining her credibility and reliability was sufficient to render the trial unfair. He particularly relied on what was said by Lord Rodger:

"[43] If the appellant's solicitor-advocate had had a copy of that statement, he would have been able to use it to considerable effect in challenging the reliability, and perhaps also the credibility, of Ms Ritchie's evidence that she had seen the appellant hitting the complainer with the hammer. That would in turn have provided a platform for challenging her evidence as a whole. Therefore the conduct of the appellant's defence was materially affected by the fact that his solicitor-advocate did not have access to this statement when cross-examining Ms Ritchie".

That approach was consistent with the views expressed in Holland v HM Advocate 2005 SC (PC) 3, 2005 SCCR 417, 2005 SLT 563. In addressing the consequences of the failure of the Crown to disclose the existence of outstanding charges against a Crown witness and a remark made by another Crown witness following his attendance at an identification parade, Lord Rodger appeared to indicate that the test for a miscarriage of justice in a case of non-disclosure was simply the possibility that disclosure might have affected the jury's verdict. That was the test originally formulated in Hogg v Clark 1959 JC 7 and it had not, in Mr Shead's submission, been departed from in McInnes v HM Advocate or Allison v HM Advocate [2010] UKSC 6, 2010 SCCR 277. Indeed, although all three judges who expressed opinions in McInnes referred to a "real possibility" of a different verdict, that should be read as an endorsement of the position in Sinclair and Holland, especially since Lord Rodger at paragraph 30 equiparated the test to that in Stirland v DPP [1944] AC 315 at 321. That test was one of inevitability - that "No reasonable jury could have failed to convict him". The test had to be a high one since an accused person's entitlement is to the verdict of a jury and not a verdict of members of an Appeal Court, and there must be no room for any reasonable doubt.

Submissions for the Crown

[11] In reply the Advocate depute maintained that there had been no miscarriage of justice. He invited the court to apply the test from McInnes - a real possibility that the jury might reasonably have come to a different verdict. He acknowledged that the view could be taken that the absence of the statements resulted in a degree of prejudice to the defence. They may have been used as material for cross-examination of Maureen Woodside. On the other hand the degree of prejudice was modest. It was not such as to prevent the defence from challenging the evidence of the Sunday confession. The defence were already aware that Maureen Woodside would give evidence of the confession at Longriggend which was to all intents and purposes the same. And indeed the statement of 1 March, which contained details of the Longriggend confession, would have provided material to reinforce the evidence of Maureen Woodside. In addition the statement of 20 January contained reference to the appellant telling Maureen Woodside that he had already declared that he and his brother would murder the person who had slashed him. Even if the jury rejected the evidence about the Sunday confession, they were still left with the evidence of the Longriggend confession and the antecedent expression of intent to murder. It was not realistic to think that the availability of these statements and further cross-examination based thereon would have led to the jury forming a different view of the evidence of Maureen Woodside. They heard robust cross-examination challenging her reliability and credibility on a number of significant fronts.

[12] The Advocate depute further submitted that, even if the evidence of Maureen Woodside was left out of account by the jury, the remaining evidence was so compelling that it would not be realistic to envisage the jury reaching a different verdict. The reality was that the appellant was part of a group carrying lethal weapons and intent upon vengeance. On the evidence of Forbes and Richford he was close to the action and in possession of an axe both before and after the attack. He made no attempt to discard his weapon or dissociate himself from the attack. He left the scene with the others who were involved. The Advocate depute founded on paragraphs 62 and 63 of the Opinion of the Lord Justice Clerk of 18 February 2009 summarising the evidence of the involvement of the appellant.

[13] The Advocate depute finally commended the approach set out by Lady Cosgrove in Kelly v HM Advocate [2005] HCJAC 126, 2006 SCCR 9 that the question at the stage of appeal was whether, having regard to the reality of what actually happened at the trial, the failure to disclose rendered the trial unfair. In his submission that could not be said in this case.

The Test to be Applied

[14] In McDonald (John) v HM Advocate [2008] UKPC 46 (D1), 2008 SCCR 954 at para.77 Lord Rodger of Earlsferry re-emphasised that:

"...while a failure by the Crown to disclose material may be incompatible with Article 6(1), it by no means necessarily follows that the accused has not had a fair trial in terms of Article 6, or that there has been some other miscarriage of justice.....In short the effect of any failure to disclose depends on a consideration of the circumstances as a whole".

The test as set out in the Opinions of their Lordships of the Supreme Court in McInnes, i.e. whether, having regard to what actually happened at the trial, there was a real risk of prejudice to the defence in the sense of a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed, is the appropriate test to determine in the present case whether there has been a miscarriage of justice. As Lord Hope put it at paragraph 20:

"The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly v HM Advocate, paragraph 35, as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act 1995. The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict".

The test applied in Kelly was whether the non-disclosure gave rise to any real risk of prejudice to the appellant. That test was approved by this Court when it dealt with McInnes - see Opinion of the Court delivered by The Lord Justice General (Hamilton) [2008] HCJAC 53, 2008 SCCR 869 at paragraph 20. In addressing that particular formulation Lord Hope said at paragraph 24:

"The Lord Justice General then said at the end of paragraph 20 that a robust test was required. The test which he identified was whether there was a real risk of prejudice to the defence. These remarks, I would respectfully suggest, need some explanation. They invite questions as to how robust the test must be and how the real risk is to be identified. They need to be taken just one step further to indicate more precisely the test that should be applied. The question which lies at the heart of it is one of fairness. The question which the Appeal Court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which they directed their verdict if the withheld material had been disclosed to the defence".

[15] As well as expressing his agreement with that formulation of the test by Lord Hope and also that by Lord Browne referred to below, Lord Rodger said at paragraph 30:

"As has been said on many occasions, not every infringement of a particular right will mean that the accused's trial as a whole has been unfair. ...Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict".

Lord Rodger concluded that paragraph with this sentence:

"Mutatis mutandis, this is the same as the test in Stirland v Director of Public Prosecutions [1944] AC 315; (1945) 30 Cr.App.R 40, which has often been applied by the Appeal Court."

Mr Shead founded strongly on that reference as a clear indication that these views in McInnes did not modify in any way the test in Holland and Sinclair, viz the unqualified 'possibility' of a different verdict. In Stirland the test was stated by Viscount Simon LC, in a speech concurred in by each of his colleagues, as follows:

"When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice, and this is the proper test to determine whether the proviso to s.4, sub-s.I, of the Criminal Appeal Act 1907 should be applied".

In our opinion Mr Shead's submission misrepresented Lord Rodger's reliance on that passage as indicating support for a weaker test. His emphasis is on the "real possibility" of a different verdict having regard to the whole circumstances of the case, and the actions of the reasonable jury properly directed. Obviously if the circumstances, viewed through the eyes of a jury acting reasonably and in obedience to the directions given, do not give rise to a realistic prospect of a different verdict in light of the availability of the non-disclosed material, then the jury must "inevitably" return the same verdict. We do not understand Lord Rodger to be saying any more than that. We certainly do not read his comment as indicating that there is some other freestanding test of the inevitability of the same verdict to be applied in circumstances such as the present.

[16] Any doubt about that is plainly removed by consideration of the judgment of Lord Brown with which Lord Hope and Lord Rodger expressed agreement. He explains in clear and simple language what is meant by the "real possibility of a different verdict":

"35. What, then, in the context of an undisclosed statement, makes a trial unfair? ...The trial will be adjudged unfair if, but only if, the Appeal Court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the Appeal Court regards the non-disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the Court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not...

38. That being the correct approach, is there any reason for concluding that the Lord Justice General adopted some different (and, from the appellant's point of view, less favourable) test in the present case? In my judgement there is not. The test he adopted was that of 'a real risk of prejudice to the defence'. True, he did not spell out that what is meant by this is that the defence was denied the real possibility of securing a different outcome. But really that was implicit in his rejection of the argument that the question to be asked was merely whether the non-disclosure 'might not possibly have affected' the outcome. There is a critical difference between asking whether disclosure 'might not possibly' have led the jury to acquit and whether that was a 'real possibility'. The difference is between what is merely conceivable and what is realistic. The Lord Justice General rejected the former test as too 'low', rightly preferring the latter as 'robust'. The judgment cannot be seriously criticised for speaking of 'a robust test', a test immediately then explained as 'the test of a real risk of prejudice to the defence'..."

Lord Brown also suggested that the test in England is the same and that it is equally applicable to cases of additional evidence.

Was There a Miscarriage of Justice?

[17] Having reviewed the evidence in the case, particularly the evidence of Maureen Woodside, we have formed the view that the availability of the statements was unlikely to have transformed significantly the defence attack on her and would have had, at best, no more than a modest impact on the assessment of her reliability and credibility. In the course of her examination in chief, the Advocate depute put to her that she had made a statement on 20 January shortly after the events. So reference was made to one of the non-disclosed statements during the trial. She maintained that in the statement she had told the truth. The Advocate depute was anxious to secure confirmation that the statement recorded that the appellant had said that he wanted to murder the person who slashed him. A little later she gave evidence of the Sunday confession. Neither then, nor at any later stage in the examination, was any indication given that the statement made any reference to the Sunday confession. Nevertheless, it does not seem to have been considered at the time to be an omission of significance to the defence. Maureen Woodside was firmly cross-examined on the basis that the Sunday confession was a figment of her imagination and on various other matters. Her evidence of the confession at Longriggend, which was to all intents and purposes in the same terms as the Sunday confession, was thoroughly tested in light of her latest statement relating to it which was available to the defence. Any detailed cross-examination on the statement of 20 January would inevitably have resulted in further reference to the appellant's statement of intent to murder his attacker made the night before and the confession made at Longriggend. In our opinion, it is not realistic to think that the availability of the missing statements, and further cross-examination based thereon, would have led to the jury forming a different view of the evidence of Maureen Woodside, whatever that view was. They heard robust cross-examination challenging her reliability and credibility on a number of significant fronts. It is therefore our opinion that the failure to disclose the statements did not render the trial unfair.

[18] Even if we are wrong about that, and the availability of the statements would have led to the evidence of Maureen Woodside being rejected by the jury and left entirely out of account, on the assumption that at the trial the jury did in fact accept material parts of it, we do not consider that there has been a miscarriage of justice. In particular we do not consider that there was a real possibility of a different verdict, namely culpable homicide, as proposed by Mr Shead.

[19] The issue for this court is whether, having regard to the evidence which was properly before the jury and the position presented by and on behalf of the appellant, there was a real possibility that, having rejected the evidence of Maureen Woodside, the jury would have returned a different verdict, in particular a verdict of guilty of culpable homicide. Having again reviewed the evidence, leaving out of account the evidence of Maureen Woodside, we are of the opinion that there was no real possibility that the jury, acting reasonably in giving effect to the proper directions of the trial judge, would have returned a different verdict. We consider that the accumulation of circumstantial evidence relating to events before, during and after the attack is so eloquent of the participation of the appellant in the murderous attack that no jury acting reasonably would have been other than convinced of the appellant's guilt of murder.

[20] The very reason for the attack was an assault on the appellant the evening before, which at the time he vowed to avenge. On the evening of the murder he gathered with the others to prepare their attack. His brother had a bayonet, he had a camping axe, his co-accused Just had a Rambo knife and his co-accused Boyle had a bottle. He was aware of all of these weapons. On his own admission they set off to confront his attackers of the previous evening. The appellant and the group of which he was part chased the deceased and cut off his means of escape. The bayonet with which his brother inflicted the fatal blow was visible. The deceased fell to the ground when he was struck by the bottle thrown by Boyle. The by then isolated deceased was surrounded by the group of which the appellant was part. His brother then stabbed the deceased through the heart. The appellant had the axe in his hand when he and the others fled the scene. Richford drove the appellant, the appellant's brother and two others to the appellant's house immediately after the attack. Two days later the appellant and his brother with the help of their father fled to Coventry. They hid there for just under a week before surrendering to the police.

[21] The pathologist, Dr McFarlane, gave evidence that a wound on the head of the deceased was likely to have been caused by a weapon that had some sort of edge, not as sharp as a knife. She rejected the suggestion that that injury was caused by an intact bottle. Professor Busuttil, then Regius Professor of Forensic Medicine at The University of Edinburgh, agreed that the injury could have been caused by some kind of axe with a blunt edge if it was a glancing type of blow, but also thought that the injury could have been caused by a bottle.

[22] Standing the appellant's denial of actual involvement in the attack and his claim of dissociation before the blows were struck, and the absence of any other evidence indicative of the appellant being involved in a minor assault, we did not consider that there was any evidential basis on which a verdict of guilty of culpable homicide could be returned. We consider that the foregoing material establishes clearly that the appellant associated himself with a murderous attack on the deceased from its inception to its completion. All the ingredients of concert were present. That is the verdict which the jury arrived at and we are entirely satisfied that the absence of Mrs Woodside's evidence would not have resulted in a real possibility of that verdict being different.

[23] In all the circumstances we refuse the appeal on this ground. All grounds in the Note of Appeal have accordingly now been dealt with.