APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lady Paton Lord Philip	[2010] HCJAC 95 Appeal No: XC319/08 XC331/08 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LADY PATON in APPEALS AGAINST CONVICTION by (FIRST) JAMES SCOTT McDONALD (SECOND) RAYMOND ANDERSON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: Findlay Q.C., V. Young, Advocate; J.C. Hughes, Glasgow

Second Appellant: Jackson Q.C., Lenehan, Advocate; Paterson Bell

Respondent: Allan Q.C., Advocate Depute; Crown Agent

1 October 2010

Introduction

[1] Shortly before 2.12 pm on Wednesday 6 December 2006, a blue Mazda car registration number S733ESF drew up outside a garage Applerow Motors, 730 Balmore Road, Cadder, Glasgow. The garage was owned by David Lyons, and was operated by him and his son Mark. Mr Lyons' nephew Michael Lyons was at the garage, servicing a van and a car. Another nephew, Steven Lyons, was visiting the garage with a friend Robert Pickett. Two men got out of the Mazda car and walked into the garage forecourt. The weight of the evidence suggested that they were wearing masks representing old men's faces (although this issue is discussed further below). Each man produced a gun, and began shooting. Michael Lyons was killed. Steven Lyons and Robert Pickett were injured. The gunmen ran back to the Mazda car, got in, and drove off. The car was subsequently found on Friday 8 December 2006 abandoned in Vaila Street, a short distance from the locus.

[2] After intensive police investigations, including the discovery in January 2007 of guns and ammunition at several addresses in Glasgow, the appellants were charged inter alia with illegal possession of firearms and ammunition, attempted murder, and murder. The second appellant's son, Raymond Anderson junior, was also a co‑accused, but by January 2008 he had been removed from the indictment. The appellants stood trial at Glasgow High Court from March to May 2008. At the end of the Crown case, neither appellant made a submission of "no case to answer". The first appellant did not give or lead any evidence. The second appellant gave evidence and witnesses were led on his behalf.

[3] One important Crown witness, John Corkish (incriminated in relation to the murder and attempted murder charges by the second appellant [185]) gave evidence in such a way that senior counsel for the first appellant suggested to the jury that Corkish was wholly incredible and unreliable, and that his evidence should be disregarded. In that event, counsel suggested to the jury that there was insufficient evidence to convict the first appellant of murder and attempted murder. Furthermore in his jury speech, counsel invited the trial judge to direct the jury that if they did not accept Corkish's evidence, there was insufficient evidence in law against the first appellant in relation to those offences. The trial judge responded at pages 27 to 28 of his charge as follows:

"In his submissions to you, Mr Findlay [counsel for the first appellant] stated that if you rejected the evidence of Mr Corkish there's insufficient evidence to convict the first accused. Mr Prais [counsel for the second appellant] didn't go as far as that in relation to the second accused, but said that Corkish was one of the pillars, or foundations, of the Crown case and if it was removed, the case crumbled. Ladies and gentlemen, I have to tell you, while the evidence of Corkish is undoubtedly of considerable importance in the Crown case against both accused, there is, in law, a sufficiency of evidence against both accused without the evidence of Mr Corkish. Whether you accept that other evidence is a matter for you, and whether it convinces you that the Crown has established the guilt of either accused is also a matter for you ..."

[4] On 2 May 2008, each appellant was convicted by unanimous verdict of illegal possession of guns and ammunition, and by majority verdict of the attempted murder of Steven Lyons and Robert Pickett, and the murder of Michael Lyons [3] {5}.

[5] The appellants appeal against conviction so far as relating to murder and attempted murder. Both contend that the judge erred in directing the jury that, without the evidence of Corkish, there was sufficient evidence for conviction of those offences. The first appellant has a further specific ground of appeal, namely that no reasonable jury could have relied upon the identification evidence purportedly given by the Crown witness Alison Harkins. The second appellant also has a further specific ground of appeal, namely that the trial judge erred in admitting into evidence a production referred to as "the Piper letter".

Circumstantial case against the appellants

[6] The trial judge's two reports detail the evidence led at the trial. The first report summarises the case against the first appellant, and the second report summarises the case against the second appellant. In this opinion, references in square brackets [e.g. 1, 39] denote pages in the first report; references in curly brackets {e.g. 5, 21} denote pages in the second report. These two reports, together with the judge's charge, give an outline of the various strands of circumstantial evidence upon which, in the judge's view, the jury were entitled to rely if they so chose. The strands are noted below. They include some evidence led by the defence, as the appellants' argument is that, taking into account all the evidence (excepting Corkish's), there was insufficient evidence to prove beyond reasonable doubt that they were the two gunmen involved in the shooting. The appeal is not therefore limited to an examination of the evidence led by the Crown, as would be the case in an argument based on section 97 of the Criminal Procedure (Scotland) Act 1995.

Close personal and business association between appellants

[7] The evidence disclosed that the two appellants had been business associates and friends for many years. The second appellant was a self-employed car-dealer. He employed the first appellant to buy, valet and repair cars, paying him a wage of £150 per week. Importantly, the first appellant bought cars only for the second appellant or for the second appellant's son Raymond Anderson junior [173]. He did not buy cars for any other person or business. The appellants often communicated with each other by mobile telephone. During the trial, the first appellant's mobile phone was referred to as the "orange" mobile; the second appellant's as the "green" mobile; and Raymond Anderson junior's as the "blue" mobile.

Appellants' involvement in purchase of Mazda car used in shooting

[8] On 4 December 2006, at about 4 pm, a Ford Focus car was purchased from a Mr Carvalho. From a combination of evidence, the trial judge concluded that the jury were entitled to infer that the Ford Focus was purchased by Corkish on behalf of the first appellant (who gave Corkish a lift to the sale point {154}); that the Ford Focus had not been test-driven by Corkish and was subsequently found to have a defective clutch; that the Ford Focus was brought by Corkish to the second appellant and that money changed hands such that the first and second appellants became joint owners; that the Ford Focus was used by the second appellant and his partner Margo Henderson until it was sold in February 2007 {145}; and that when the car was sold, the proceeds were divided equally between the first and second appellants.

[9] Later on the same day, 4 December 2006, at about 9 pm (i.e. a few hours after the purchase of the Ford Focus), the blue Mazda car used in the garage shooting was purchased from a Mr Young in Clarkston [41]. From a combination of evidence establishing that the first appellant purchased cars only for the second appellant or his son [173]; telephone calls from the first appellant's orange mobile to Mr Young in which the caller asked for directions from Maryhill to the sale point in Clarkston [40‑41]; telephone calls from the first appellant to the second appellant's green mobile (received at the latter's home at Jerviston Road [55] {144}) asking for directions to Clarkston [52-56]; other numerous telephone calls between the orange and green mobiles during the evening of 4 December 2006 [180]; and finally the evidence of the second appellant, the trial judge concluded that the jury were entitled to infer that the first appellant purchased the blue Mazda car (using Corkish as his agent [153]), and that the second appellant was also involved in the transaction.

Alison Harkins' evidence that the first appellant was similar to one of the gunmen

[10] A 15-year-old schoolgirl Alison Harkins was being driven north on Balmore Road on 6 December 2006 by her mother. Miss Harkins heard and saw parts of the shooting incident. She heard gunshots. She saw two gunmen running out of the garage, getting into the Mazda car and driving off behind her mother's car. She watched the Mazda driving behind her car and turning left into Skirsa Street. Later, when assisting the police, she described the man who got into the passenger seat [26] as tall, wearing an old man's hat, with a long jacket to his knees. She saw his face (which she did not think was masked), and thought that he was aged about 40, with old man's wrinkles around his mouth and quite a big nose. She did not see so much of the driver, but thought that he was about the same age and height as the passenger. Both men were tall and slim. At a subsequent identification parade on 10 March 2007, she initially made no selection. When asked if any of the men were similar, she selected the first appellant. She said that she picked him out because of the wrinkles round his mouth and his big nose: he was "similar" to the man she had seen getting into the passenger seat, and it could have been the same person. The trial judge directed the jury that her evidence could not be regarded as an identification, but it was nevertheless an adminicle of evidence which they could take into account when considering the whole circumstantial case.

Evidence entitling the jury to infer that the second appellant was in the vicinity of Balmore Road at the time of the shooting

[11] Telephone records were consistent with the second appellant driving his car at 2 pm on 6 December 2006 on the M8 motorway in the direction of Balmore Road {148}. Further telephone records were consistent with the second appellant making calls between 2.20 pm and 2.38 pm as he walked or ran across the waste ground to the south of Vaila Street, through various streets to Maryhill Road. His next call, at 3.02 pm, was made when he was driving home on the M8. The Crown case was that the telephone records were consistent with the second appellant driving on the M8 to Balmore Road, participating in the shooting, abandoning the Mazda car in Vaila Street, walking south to Maryhill Road, and then returning home. The second appellant in evidence gave an alternative innocent explanation for the telephone calls, namely meeting his son. His evidence is referred to in greater detail in paragraph [30] below.

Telephone silence coinciding with time of shooting

[12] The evidence demonstrated that the appellants and Raymond Anderson junior were frequent users of mobile telephones, sometimes calling each other every few minutes. Telephone records showed that on 6 December 2006, the day of the shooting, the two appellants made telephone calls to each other between 10.48 am and 1.25 pm [181, 183]. Thereafter the phone-calls between the appellants stopped altogether, and did not begin again until 3.02 pm [181, 183] {160}. The records also showed that, prior to 2 pm, Raymond Anderson junior made phone-calls to his father (the second appellant), at least one of which, at 1.31 pm, used the Kelvindale cell-site servicing inter alia Applerow Motors [181] {158}. Calls between the second appellant and his son Raymond Anderson junior stopped at 2.10 pm (the 2.10 pm call being a 4-second call from Raymond Anderson junior to the second appellant), and started again at 2.20 pm [80, 182], {149-150, 158}.

Appellants' ceasing to use their mobiles after 6 December 2006

[13] After 6 December 2006, the appellants and Raymond Anderson junior each stopped using the orange, green and blue mobile phones respectively. Subsequently they each used a different phone. Later, in a conversation recorded during surveillance on 16 January 2007, the second appellant was heard to say:

"No matter what technology they've goat fuckin' leave wur phones an awe that behind"

In the context, "they" referred to the police. When giving evidence, the second appellant said that on 6 December 2006 he stopped using his mobile phone because on that date, the first appellant came to see him and said that Corkish had been involved in something shady [182] {156}. Because of that, the first appellant said that he was changing his telephone, so the second appellant changed his.

Fired bullet found at Applerow Motors

[14] A fired 9mm bullet was found at Applerow Motors following upon the shooting [106].

Burning of Mazda car and evidence from which the jury were entitled to infer that the first appellant was in the vicinity of the car at the time, and that the second appellant had been in the vicinity at an earlier time

[15] On 8 December 2006, the blue Mazda car left in Vaila Street was set on fire. The first call to the fire brigade was at 9.41 pm [36, 135]. The second appellant stated in evidence that he had been in Skirsa Street (which is near Vaila Street) earlier that evening at about 8.30 pm, with his wife and daughter {152}. Telephone records demonstrated that the second appellant made a mobile telephone call (on a different mobile from the green mobile) at 8.34 pm to the first appellant, using a cell-site at Kelvindale which served Vaila Place, near Vaila Street [96, 185] {153, 160}. Telephone records relating to a text [61] demonstrated that the first appellant was in an area which included Vaila Street at about 9.43 pm [61] {161}. The trial judge in his report notes that it was open to the jury to conclude that (i) the second appellant telephoned the first appellant about an hour before the fire started; and (ii) the first appellant was in the vicinity of the car at the time of the fire.

John Corkish elsewhere at relevant times

[16] The evidence established that John Corkish was not present at either locus on 6 or 8 December 2006 at the relevant times [185-186].

The Piper letter

[17] On 16 December 2006, David Lyons, the owner of Applerow Motors, received a document by Royal Mail post. It was in the following terms:

"DAVY LYONS

HERE'S YOUR CHANCE TO PUT A STOP TO THIS FEUD. THE BOYS OWE ME £25,000 AND I WANT WHAT'S OWED TO ME. IT'S FOR DRUGS THEY'LL KNOW WHAT IT'S ABOUT AS THEY'VE GOT TO PAY THE PIPER. THE MONEY DOESN'T MATTER TO ME BUT IT MATTERS TO THE PIPER. IT'S GOT TO BE PAID! I DON'T WANT THE POLICE OR THE BOYS NOT EVEN YOUR WIFE KNOWING ABOUT THIS. IF YOU KEEP THEM OUT OF THIS THEN ALL YOUR LIVES CAN GO BACK TO NORMAL, AS WE'RE ALL LOSING MONEY THROUGH THIS IF YOU'VE ANY TRICKS FOR MY PICK UP MAN THEN ALL DEALS ARE OFF. IF YOU'RE A FAMILY MAN AND YOU VALUE YOUR WORD THEN YOU''LL (sic) DO WHAT IS ASKED. AND REMEMBER TO KEEP YOUR MOUTH SHUT. SO NO CAMERAS, NO SURVEILLANCE AS THE PICK UP MAN DOESN'T KNOW NOTHING (sic) SO HE'S NO USE TO YOU. DROP OFF 4 PM SATURDAY. I'LL DRAW YOU MAP AND X WILL MARK THE DROP SPOT.

THE PIPER

PS THE BALL IS IN YOUR COURT!"

The possible inferences which could be drawn from the Piper letter are discussed in paragraphs [57] to [62] below.

The appellants' illegal possession of guns and ammunition

[18] On 11 January 2007, police officers found machine guns and ammunition (including 9mm bullets of the type used in the shooting at the garage) at several addresses in Glasgow. One address, namely 82 Inishail Road, Craigend, Glasgow [50] was that of Georgette Bailey (the sister of the second appellant's partner Margo Henderson) and her partner Gerard Elliot. Miss Bailey was placed on remand in Cornton Vale Prison. She told the police that the second appellant, whom she referred to as her uncle, had delivered the items including 9mm ammunition to her home [10, 115, 117, 122]. Ultimately the appellants were convicted of illegal possession of firearms and ammunition. In particular the appellants were convicted of possession of machine guns and ammunition including 9mm bullets [2, 5].

Covert surveillance and recorded conversations

[19] On 16 January 2007, covert surveillance of a conversation in a car between the first and second appellants recorded the following exchange (pages 18 and 19 of the transcript) [130] {155}:

"First appellant: Aye they'll huv us doon as fuckin dangerous fuckers know what a mean

Second appellant: Aye they'll be thingmied in awe Jamie to shoot us

First appellant: Oh ah know they will

Second appellant: They make ah move just shoot them

First appellant: Aye

Second appellant: Ah don't give ah fuck Jamie

First appellant: Fuck them

Second appellant: Aye fucking right up there man. See wance we got oot in another motor they're fucked

First appellant: Ah know

Second appellant: No matter what technology they've goat fuckin leave wur phones an awe that behind

First appellant:

Second appellant: Aye they're fucked".

At an earlier stage in the conversation (page 7 of the transcript [131]), the first appellant was recorded as saying:

"Oh well he's got to pay the Piper boy, an the Piper's not a happy man."

When giving evidence at the trial, the second appellant acknowledged that he had said the words recorded during surveillance. He explained that the conversation had adopted a tone of bravado {143}. "Paying the piper" was simply a figure of speech {155}. He had never heard of anyone called "the Piper".

[20] There were other passages in the covert surveillance recordings for 16 January 2007 which, in the trial judge's view, permitted the jury to draw inferences that (i) the second appellant had visited Georgette Bailey in Cornton Vale Prison on 16 January 2007 (a fact confirmed by the second appellant when giving evidence {143}); (ii) on his return to the car, the second appellant said that Miss Bailey had been asked what she knew about the Maryhill murder, and claimed that Miss Bailey's comment was "Aye, it was big Rammie an awe" [129], which provoked laughter in the car. (The jury were entitled to infer from evidence about an earlier recorded conversation on 15 January 2007 - the day before the Cornton Vale visit - that Miss Bailey called the second appellant "Rammie" [124]).

Spent cartridges on ground near first appellant's home

[21] On 11 April 2007, spent cartridges (including 9 mm cartridges) were found in Hogarth Park, a piece of open ground about quarter of a mile from the first appellant's home address at 0/2 30 Irongray Street, Glasgow G1. There was evidence that at least four of those cartridges had been fired from a 9mm calibre firearm [108, 111]. At least one of the cartridges could have been fired from one of the guns used in the garage shooting, namely a 9 mm calibre gun, although equally it could have been fired from another gun [106, 108, 122].

Submissions for the first appellant

[22] Senior counsel for the first appellant submitted that the central question was whether, in the absence of the evidence of Corkish, there was sufficient evidence for the jury to infer that the first appellant was one of the two gunmen involved in the shooting. Counsel rehearsed the circumstantial evidence excluding Mr Corkish's evidence, and made the submissions noted below, although not necessarily in that order.

Purchases of Ford Focus and Mazda cars

[23] There was no evidence to link Corkish's purchase of the Ford Focus to the shooting. It was not reasonable to expect the jury to infer that the Focus had been intended as a getaway car when the purchaser did not road-test it. As for the Mazda, the evidence suggested that Corkish alone met the purchaser, paid the price, and drove off. At best for the Crown, all that the evidence established was that the first appellant was involved in the purchase of a Mazda car which ended up being used in the shooting at Balmore Road.

Second appellant's being in the vicinity of Balmore Road on 6 December 2006

[24] The evidence relating to the second appellant and his son being in the vicinity of Balmore Road on the day of the shooting (6 December 2006) was not relevant to the first appellant. The second appellant's actions had nothing to do with the first appellant.

Alison Harkins' evidence

[25] The weight of the evidence was that the gunmen were masked. There was no evidence suggesting that the gunmen had removed masks. That rendered Alison Harkins' evidence (that she had seen a real face) of little weight. No reasonable jury could have concluded other than that the gunmen wore masks. Thus Miss Harkins' evidence was in direct conflict with the main body of identification evidence led by the Crown. Her evidence could not be regarded as an identification of the first appellant, either actual or partial.

Illegal possession of guns and ammunition

[26] Illegal possession of guns and ammunition in January 2007 did not permit the jury to draw any inferences in relation to the shooting in December 2006. The two matters were entirely separate and distinct. Thus any evidence about an association in criminal activity between the appellants on or before 11 January 2007 was not habile to support the proposition that they were at Applerow Motors on 6 December 2006. Moreover the trial judge was wrong to suggest [175] {177} that the jury were entitled from the surveillance evidence to conclude that the appellants "were prepared to shoot people, including police officers". The relevant part of the recorded conversation in fact referred to police officers being prepared to shoot the appellants. Further, the spent cartridges found at Hogarth Park had no relevance to the first appellant and could not place him either at Hogarth Park (if and when the cartridges were fired there), or at the scene of the shooting at Balmore Road. No significance could arise from the fact that the cartridges were discovered in a park in the east end of Glasgow some quarter of a mile from the first appellant's home at Irongray Street.

The Piper letter

[27] There was no evidence of the existence of someone influential in the criminal fraternity called "the Piper". Nor was there evidence linking the first appellant to the letter. The recipient of the letter, David Lyons, treated it as a joke. The appellants' subsequent comments relating to the Piper, recorded on 16 January 2007 during a surveillance exercise, were made in the context of guns, not in the context of the shooting at the garage. The relevance of the letter was dubious and it was doubtful whether it should have been admitted in evidence.

Final submission for the first appellant

[28] Viewed as a whole, there was no evidence habile to support the allegation that the first appellant was at the garage on 6 December 2006 at the time of the shooting. The strands of evidence relied upon by the Crown failed to present the jury with sufficient material to conclude that the first appellant was involved in the shooting. Without the evidence of Corkish, there was no connection between the first appellant and the firearms used in the shooting. The trial judge erred when directing the jury that they could find sufficient evidence without Corkish's evidence. As a result there had been a miscarriage of justice. The court should quash the first appellant's convictions for murder, attempted murder, and all other related charges having a bearing on what occurred on 6 December 2006.

Submissions for the second appellant

[29] Senior counsel for the second appellant submitted that the trial judge erred in directing the jury that there was a sufficiency of evidence against the second appellant, without the evidence of John Corkish. Indeed, counsel did not concede that there was a sufficiency even taking the evidence of Corkish into account, but the basis of the appeal was nevertheless the judge's misdirection. Taking all the evidence together (as was necessary in a circumstantial case) there was insufficient evidence to entitle the jury to be satisfied beyond reasonable doubt of the second appellant's guilt.

The second appellant's presence at or about the scene of the crime

[30] Perhaps the best piece of evidence for the Crown was the inference, drawn from telephone records, that the second appellant was at or about the scene of the crime at or about the time of the crime (cf paragraph [11] above). The Crown also relied upon the lack of telephone contact during the time of the shooting. The Crown argued that the telephone evidence showed a pattern of calls consistent with the second appellant driving to the garage, taking part in the shooting, leaving the car in Vaila Street, and going back home. However it was clear that the Crown started with a preconceived notion that the second appellant had committed the crime, and then fitted the evidence to that notion: that was a dangerous approach. Moreover the second appellant had provided an alternative innocent explanation for the pattern of phone calls. Balmore Road was a midpoint between his two homes in Drumchapel (where he stayed at weekends with his wife Rosemary and the children of the marriage, including Raymond Anderson junior) and Craigend (where he stayed during the week with his partner Margo and their daughter). The second appellant had wanted to meet his son Raymond junior at or about this mid-point at about 2.30 pm on 6 December 2006 in relation to the purchase of a car (a red Honda Accord) {146}. As his son was not reliable, there had been many phone-calls between them, trying to ascertain where his son was and trying to achieve the meeting. The second appellant had marked up a map showing his route and the telephone calls made. He had left home at Jerviston Road, Craigend, at about 1.45 pm or 1.50 pm [51, 59] {149}, and had travelled west along the M8, taken the turn-off for Balmore Road, driven past Applerow Motors then through various streets, met his son at Charlie Clark's garage in Maryhill, driven to Anniesland Cross, and finally returned eastwards on the M8 to Jerviston Road arriving home at about 3 pm {148 - 150}. A telecommunications expert (Mr Coaker) had been led by the defence to comment on the pattern of telephone calls. The second appellant had been unaware of the shooting until the court case. It was unfair of the trial judge to suggest in his first report that at some of the locations which the second appellant had marked on the map, the topography of the area made telephone calls impossible [183].

The business and personal association between the two appellants

[31] The association between the two appellants, involving as it did many telephone calls between them, proved nothing.

The appellants' criminal activities in relation to guns and ammunition

[32] The appellants' involvement in guns and ammunition took the Crown case no further, and had no bearing upon the crimes of murder and attempted murder. The comment about shooting people, recorded in the context of guns, had not been relied upon by the Advocate depute in his jury speech. The offence of illegal possession of guns occurred some time after the shooting. Moreover the guns were not the subject of the present appeal.

The purchases of cars

[33] The events relating to the purchases of the Ford Focus and Mazda cars did not assist the Crown. The evidence did not establish that the second appellant was involved in the purchase of the getaway car. The second appellant had not been present at the purchase of either the Ford Focus or the Mazda. While there was evidence of the first appellant's involvement, there was none relating to the second appellant. The first appellant's calls to the second appellant asking for directions to Clarkston did not entitle the jury to reach the conclusion that the second appellant was involved in the purchase of the Mazda.

The cessation of use of the green, orange, and blue mobile phones

[34] No inference could be drawn from the cessation of use of the mobile phones. The users simply stopped using these mobiles after 6 December 2006. The recorded conversation on 16 January 2007 ("No matter what technology they've goat fuckin leave wur phones an awe that behind") might have given rise to an inference of involvement in criminal activity, but it did not implicate the appellants in the murder or attempted murder.

The spent cartridges in Hogarth Park

[35] There was no link between the second appellant and the spent cartridges found in Hogarth Park.

The burning of the Mazda car and evidence from which the jury were entitled to infer that the second appellant had been in the vicinity of the car earlier

[36] All that the evidence showed was that the second appellant had been in an area he was often in, approximately one hour before the fire. As Balmore Road was a major thoroughfare, his presence in the vicinity was not so strange. Nor was it odd that he had telephoned the first appellant about an hour before the fire.

John Corkish elsewhere at relevant times

[37] Counsel submitted that the evidence relating to Mr Corkish being elsewhere at the times of the shooting and the burning of the Mazda was of no value. Nevertheless in answer to a question from the bench, he conceded that the evidence permitted the jury to conclude that Corkish was not one of the two gunmen.

Alison Harkins' evidence

[38] Counsel adopted Mr Findlay's arguments in relation to the evidence given by Alison Harkins, and the question whether or not the gunmen were wearing masks.

Covert surveillance and recorded conversations

[39] Counsel submitted that there was nothing significant or incriminating about a conversation in which the second appellant reported that Georgette Bailey said (of the Maryhill murder) "Aye, it was big Rammie an awe", and laughter followed.

The Piper letter

[40] Again, counsel adopted Mr Findlay's submissions. The Piper letter gave no support to the proposition that the second appellant went into the garage wearing a mask and shot someone. The Piper letter was in fact irrelevant, and should not have been admitted in evidence. There had been no evidence of any drug feud or any debt. The recipient of the letter, Mr Lyons, dismissed it as a hoax. During the trial, the Crown argued that the letter was relevant because of the bugged conversation in the car on 16 January 2007, referring to "paying the piper": but that conversation took place in a completely different context of guns and ammunition. On the balance of fairness, the Piper letter should not have been admitted in evidence.

Final submission for the second appellant

[41] Senior counsel reiterated that, without the evidence of Corkish, the evidence led at the trial was insufficient to prove the second appellant guilty of murder and attempted murder. Those convictions should be quashed.

Submissions for the Crown

[42] The Advocate depute submitted that the Appeal Court should be slow to attempt to unravel a jury decision by stripping away strands of evidence and attempting to identify what weight should be given to the remaining strands. The significance and weight to be attributed to an adminicle of evidence - both in isolation and when taken with other adminicles - were matters for the jury. That said, it was the Crown's position that even without the evidence of Corkish, there was sufficient evidence in law. There were many adminicles of evidence which, when taken individually, might not mean much, but when taken together, proved beyond reasonable doubt that the appellants were responsible for the murder and attempted murders.

[43] The Advocate depute then referred to the sections in the trial judge's reports headed "Sufficiency of the above evidence" [169] {171}. He identified the various strands of circumstantial evidence available for the jury's consideration as follows.

Close association between the appellants

[44] Reference was made to the trial judge's second report pages 175-177. In relation to page 177 paragraph 5, the Crown was prepared to accept that one interpretation open to the jury was that the appellants were prepared to shoot people, including police officers. The trial depute had not in fact relied upon that interpretation, but it was open to the jury to construe it that way.

Purchase of the Ford Focus car

[45] On the basis of the evidence recorded at page 179 of the judge's second report, the jury were entitled to conclude that both appellants were involved in the purchase of the Ford Focus. The trial depute had not in fact relied upon that transaction as being directly incriminating. In particular, the Crown could not say whether or not the Ford Focus had been intended as the getaway car: that was a matter for the jury.

Purchase of the Mazda car

[46] When the pattern and frequency of calls between the appellants during the Mazda transaction {181} were considered against a background of their close personal and business association and the fact that the first appellant purchased cars only for the second appellant or his son, it was open to the jury to conclude that both appellants were involved in the purchase of the Mazda.

The day of the shooting: 6 December 2006

[47] Reference was made to the trial judge's first report at pages 60 et seq. The defence sought to single out one particular strand of evidence, and to suggest that it was insignificant. But as more strands were examined, the weight of coincidence grew. In relation to the inference that the second appellant left the Mazda at Vaila Street and went by foot to Maryhill Road, not only were there telephone records (demonstrating that the second appellant's green mobile phone made that journey) but there was the witness Ian Foulds who saw two men getting out of the Mazda car in Vaila Street and running in the direction of Maryhill Road. The jury were entitled to conclude that the second appellant had made the calls from his green mobile phone as he travelled over the route to Maryhill Road. The jury were also entitled to take into account the cessation of use of the mobiles on 6 December 2006 and the recorded comment from the second appellant ("No matter what technology they've goat fuckin' leave wur phones an awe that behind"), to treat those adminicles as having a degree of significance, and to form the view that the cessation of use of the mobiles on 6 December 2006 had something to do with what happened that day. Further the jury were entitled to take into account the telephone silence at the time of the shooting, and to compare that with the pattern and frequency of telephone calls before and after the shooting. The period of silence during the shooting constituted an important adminicle of evidence.

Guns and ammunition

[48] The jury were entitled to conclude that an examination of one of the cartridge cases found in Hogarth Park showed that it was consistent with its having been discharged from the same gun as one of the guns used at the shooting. They were entitled to note that Hogarth Park was in the locality of the first appellant's home in Irongray Street.

The events of 8 December 2006

[49] The jury were entitled to conclude that (i) the second appellant phoned the first appellant one hour before the Mazda car was set on fire; (ii) the first appellant was in the vicinity of the Mazda at the time of the fire. The jury were also entitled to eliminate Corkish, as he was not at the locus at the relevant time.

The evidence of Alison Harkins

[50] Alison Harkins' evidence of similarity was not an "identification" as such, but the jury were entitled to take into account her description of particular features and to add it to the body of evidence they had to consider. It was open to the jury to accept Miss Harkins and to reject other evidence (wholly or partly) that the gunmen were masked when they fled from the garage. In any event, several other witnesses had given evidence making no reference to masks: for example, Anne Marie Goff [30], Edward McCormack [98], Liam Boyle [99] and James Hill [101]. Further the shooting incident had taken place in stages: Alison Harkins' evidence related to a fairly late stage, when the gunmen were leaving. It was open to the jury to conclude that the weight of the evidence pointed to the wearing of masks during the shooting, but not at a later stage. It was ultimately a matter for the jury, and it could not be said that no reasonable jury could have accepted Alison Harkins' evidence on the question of masks.

The conversation on returning from Cornton Vale on 16 January 2007

[51] Several interpretations could be placed on the laughter following the reported comment "Aye, it was big Rammie an awe". It was open to the jury to infer that "big Rammie" was in fact the second appellant, and that the laughter was a display of contempt and lack of concern. It was for the jury to decide what inference to draw, and to add that to the circumstantial case.

The Piper letter

[52] The conversation recorded during covert surveillance did not simply refer to the well-known adage "he who pays the piper calls the tune", but rather referred to the Piper as a person, and described his demeanour (not a happy man). The Piper letter similarly referred to someone known as "the Piper". Thus "the Piper" was being used as a name or nickname. That nickname provided an important link between the letter and the conversation in the car. The letter was therefore relevant. The jury were entitled to reject David Lyons' suggestion that the letter was a hoax, and it was for the jury to decide what to make of the letter.

Final submission for the Crown

[53] In conclusion, the Advocate depute submitted that there was a compelling circumstantial case against each appellant. There had been no misdirection: even without the evidence of Corkish, there was sufficient evidence against each appellant. The appeals should be refused.

Discussion

A. Challenge to six specific areas of evidence

[54] Six specific challenges were made in the course of the appellants' submissions. It is proposed to address those at the outset.

Whether it could be inferred that the second appellant was involved in the purchase of the Mazda car

[55] In relation to the purchase of the Mazda car only a few hours after Corkish (acting for the first appellant) purchased the Ford Focus, the jury would be entitled to take into account the following evidence:

·       The first appellant purchased cars only for the second appellant or his son [173].

·       On the evening of the purchase of the Mazda (4 December 2006) a caller using the first appellant's orange mobile, phoned the seller of the Mazda, Mr Young who lived in Clarkston, to ask for directions to the sale point in Clarkston. Further the first appellant phoned the second appellant (a call acknowledged by the second appellant to have been received from the first appellant on the second appellant's green mobile at his home at Jerviston Road {144}) and asked him for directions to Clarkston.

·       In the course of the period during which the Mazda was purchased, there were numerous telephone calls between the orange mobile and the green mobile.

In our opinion, on the evidence led, a jury would be entitled to draw the inference that the second appellant was involved in the purchase of the Mazda.

Whether a reasonable jury could believe that Alison Harkins saw an unmasked gunman, bearing in mind the overwhelming weight of the evidence that the gunmen were masked

[56] There was evidence other than Miss Harkins' evidence suggesting that the gunmen were unmasked: see, for example, Ann Marie Goff [30], Edward McCormack [98], Liam Boyle [99], and James Hill [101]. It was for the jury to decide what evidence to believe, what to disbelieve, and to assess the credibility and reliability of witnesses. The jury were entitled to prefer the evidence of one witness to that of another. They were entitled to prefer the evidence of Alison Harkins, and to find support for her evidence in the evidence of Goff, McCormack, Boyle and Hill. The jury were also entitled to form the view that the gunmen may have been masked at one stage, but not at another stage. In that context it was not necessary for the Crown to lead an eyewitness who actually saw a mask being removed. In our view therefore the jury were entitled to accept Alison Harkins' evidence if they so chose, including her description of the passenger gunman (as aged about 40, with a big nose, and other details) and her selection of the first appellant at the Identification Parade as someone similar to the passenger gunman. We are not therefore persuaded that no reasonable jury could believe that Alison Harkins saw an unmasked gunman.

Whether the Piper letter should have been admitted in evidence

[57] During the surveillance operation on 16 January 2007, the first appellant was recorded as saying to inter alios the second appellant:

"Oh well, he's got to pay the Piper boy, an' the Piper's not a happy man."

Other topics during that conversation of 16 January 2007 included the second appellant's report about Georgette Bailey's view on the Maryhill murder ("Aye, it was big Rammie an awe"), followed by laughter; the first appellant's comment that the police would have the first and second appellants marked down as "dangerous"; the second appellant's observation that the police would be "thingmied [an] awe [instructed and everything] to shoot [them]"; also the second appellant's comments "They make ah move just shoot them ... No matter what technology they've goat fuckin' leave wur phones an awe that behind". The conversation therefore touched on someone who had to pay a person called "The Piper", who was said not to be happy; Miss Bailey's view that big Rammie had carried out the Maryhill murder (and Miss Bailey was known to refer to the second appellant as "big Rammie"); laughter following the attribution of the murder to the second appellant; an assertion that the police would have classified the appellants as dangerous; and an observation about phones which might seem relevant to the sudden cessation of use of the orange, green, and blue mobiles on 6 December 2006, the day of the shooting.

[58] In our opinion, when the Piper letter, received by one of the victims of the shooting (David Lyons) on 16 December 2006 some ten days after the shooting, is considered against the background of the above-noted conversation on 16 January 2007, it could not but be considered relevant and admissible for several reasons.

[59] First, there is the obvious link in that someone called "the Piper" is mentioned both in the letter and in the conversation, as is the concept of paying the Piper. It is in our view unrealistic to suggest that no weight could be placed on that link between the letter and the conversation.

[60] Secondly, the letter was received by one of the victims of the shooting only ten days after that shooting. It was open to the jury to infer that the contents of the letter related to the shooting: for example, it is suggested that if money is paid "lives can go back to normal": at least one inference which might be drawn from that message is that if the money were to be paid, there would be no more trouble. It was further open to the jury to reject David Lyons' evidence [19] that he could not explain the letter, that there was no question of drugs or money owed, and that the letter was a hoax.

[61] Thirdly, it was not in our view a prerequisite of the admissibility of the letter that the Crown should establish that there was indeed a particular person known as "the Piper", or that there were in fact disputes about drugs and debts involving the Lyons family. The timing and content of the letter alone were sufficient to make it relevant.

[62] In our view therefore the trial judge was well entitled to admit the Piper letter in evidence.

Whether the appellants' illegal possession of guns and ammunition was relevant

[63] In this case, the crimes of murder and attempted murder were committed using two guns, and ammunition including 9 mm bullets. Those were distinctive features of the homicide and attempted homicides which the jury were entitled to take into account. Evidence that, within just over a month following the shooting, the first and second appellants were found to be in illegal possession of guns and ammunition including 9 mm bullets, is in our view clearly relevant to the jury's assessment of a circumstantial case. The appellants were shown to be people who possessed guns and ammunition (including 9 mm bullets), and had access to guns and ammunition, within a few weeks of a shooting incident. Such evidence was in our view entirely relevant, a fortiori when the ammunition included 9 mm bullets of the sort used in the shooting.

Whether the phrase "They make ah move just shoot them" could properly be construed as meaning that the appellants were prepared to shoot police officers

[64] The relevant passage is noted in paragraph [19] above. In our view, it was open to the jury to form the view that the appellants were prepared to shoot police officers. An alternative interpretation, namely that the police were likely to have been instructed that in certain circumstances they should not hesitate to shoot the appellants, was also open to them. The question which construction or interpretation to adopt was a matter for the jury.

Whether there was any significance in the report that Georgette Bailey considered that big Rammie had carried out the Maryhill murder, and the ensuing laughter

[65] Again the significance, if any, of Georgette Bailey's alleged response about who was responsible for the Maryhill murder, as suggested by the second appellant, and of the laughter following, were matters for the jury. It was at least open to the jury to draw an adverse inference from the appellants' laughter.

B. Circumstantial case and sufficiency of evidence

[66] The nature of circumstantial evidence was authoritatively defined in Al Megrahi v HM Advocate 2002 JC 99, 2002 SCCR 509 at paragraphs [32] to [36]. The principal features of such evidence are: first, the evidence must be viewed as a whole. Each piece of circumstantial evidence need not necessarily be incriminating. What matters is the coherence and concurrence of testimony, the emergence of a pattern, and the inferences which the jury may draw when viewing the circumstances as a whole. Secondly, circumstantial evidence may be open to more than one interpretation. It is for the jury to decide which interpretation to adopt, and whether to draw the inference beyond reasonable doubt that the accused is guilty of the crime. Thirdly, there may be a body of evidence (supportive, for example, of an alternative innocent explanation) which is quite inconsistent with the accused's guilt. A jury must consider all the evidence: but having done so, they are entitled to reject the inconsistent evidence if they so choose.

[67] In the present case, the jury had to consider the evidence against each appellant separately, and to return a separate verdict in respect of each. It is therefore necessary to examine the circumstantial evidence in two chapters.

The first appellant

[68] In the case of the first appellant, the jury were entitled to take inter alia the following evidence into account:

1. Evidence from which they could infer that the first appellant was involved in the purchase on 4 December 2006 (some two days before the shooting) of the blue Mazda car registration number S733ESF used as the getaway car at the shooting.

2. The absence of any evidence suggesting that the first appellant reported that the Mazda car had disappeared or been stolen, although the car was (within days of purchase) used for criminal purposes, abandoned, then destroyed by fire.

3. Alison Harkins' evidence about the similarity between the first appellant and the gunman who got into the passenger seat of the Mazda car immediately after the shooting, and her selection of the first appellant on that basis at the identification parade.

4. Evidence relating to mobile phones, including (i) the frequent calls between the two appellants; (ii) the cessation of such calls during the period of the shooting; (iii) evidence that the first appellant stopped using his orange mobile altogether from the day of the shooting (6 December 2006) onwards, as did the second appellant in respect of his green mobile, and Raymond Anderson junior in respect of his blue mobile; (iv) evidence that the first appellant received a text on another mobile phone at 9.43 pm on 8 December 2006 while in the vicinity of the abandoned car in Vaila Street, i.e. at about the time the abandoned car was set on fire.

5. Evidence relating to fired 9 mm cartridges found in Hogarth Park, situated a quarter of a mile from the first appellant's home at 30 Irongray Street; in particular evidence that at least one of the 9 mm cartridges found there could have been fired from one of the guns used in the shooting.

6. Evidence of the first appellant's illegal possession on 11 January 2007 of machine guns and ammunition, and in particular possession of 9 mm bullets of the type used in the shooting one month earlier (on 6 December 2006).

7. Evidence about the conversation in the car on 16 January 2007, involving the first and second appellants and including (i) references to "the Piper", such as the first appellant's comment "Oh well, he's got to pay the Piper boy an' the Piper's not a happy man". The jury would be entitled to assess those references against the background of the Piper letter received by David Lyons, the owner of Applerow Motors (the locus of the shooting), which referred to Mr Lyons' boys having to pay someone called "the Piper" £25,000 for drugs, with the result that a "feud" would stop, and lives could "go back to normal". (ii) Evidence about the comment made by the second appellant to the first appellant, namely "No matter what technology they've goat fuckin' leave wur phones an awe that behind". The jury would be entitled to link that comment to the sudden cessation of use of the first appellant's orange mobile, the second appellant's green mobile, and Raymond Anderson junior's blue mobile from 6 December 2006 onwards. (iii) Evidence of the second appellant's claim to the first appellant that, in the context of the Maryhill murder, Georgette Bailey had said "Aye, it was big Rammie an awe", which provoked laughter. (iv) Comments in the car conversation that the police would have the two appellants marked down as "dangerous", with the additional observation "They make ah move just shoot them".

8. The close association, both business and personal, between the first and second appellants.

9. Evidence establishing that John Corkish was not in the vicinity of Balmore Road or Vaila Street at the times of the shooting and the burning of the car on 6 and 8 December 2006 respectively.

[69] In our opinion, each individual piece of evidence, viewed in isolation, might not appear to take the Crown case very far; but when viewed altogether, there is such a coherence and pattern in the evidence that it can be concluded beyond reasonable doubt that the first appellant was one of the two gunmen who carried out the shooting at Applerow Motors. In other words, the evidence outlined above was in law sufficient to entitle the jury to return a verdict of guilty against the first appellant in respect of the murder and attempted murders, without relying upon the evidence of John Corkish. It follows that the direction quoted in paragraph [3] above was not a misdirection.

The second appellant

[70] In the case of the second appellant, the jury were entitled to take inter alia the following evidence into account:

1. Evidence from which they could infer that the second appellant was involved in the purchase on 4 December 2006 (some two days before the shooting) of the blue Mazda car registration number S733ESF used as the getaway car at the shooting.

2. The absence of any evidence suggesting that the second appellant reported that the Mazda car had disappeared or been stolen, although the car was (within days of purchase) used for criminal purposes, abandoned, then destroyed by fire.

3. Evidence relating to the second appellant's green mobile phone, consistent with the second appellant's being in the vicinity of Balmore Road at or about the time of the shooting, and making calls between 2.20 pm and 2.38 pm as he walked or ran across the waste ground to the south of Vaila Street and through various streets before reaching Maryhill Road.

4. The evidence of Crown witness Ian Foulds, who on 6 December 2006 saw the two men who got out of the Mazda car in Vaila Street running in the direction of Maryhill Road.

5. Further evidence relating to mobile phones, including (i) the frequent calls between the two appellants; (ii) the cessation of such calls during the period of the shooting; (iii) evidence that the second appellant stopped using his green mobile altogether from the day of the shooting (6 December 2006) onwards (as did the first appellant in respect of his orange mobile, and Raymond Anderson junior in respect of his blue mobile), together with the second appellant's explanation when giving evidence in court, namely that the first appellant had told him that he was stopping using his orange mobile because Corkish had done something shady and so he (the second appellant) decided to stop using his green mobile; (iv) the telephone call at 8.34 pm on 8 December 2006 from the second appellant to the first appellant (using a different mobile phone, and using a cell-site at Kelvindale which serviced Vaila Street), i.e. about an hour before the Mazda car was set on fire.

6. The second appellant's own evidence about being in Skirsa Street (which is near Vaila Street) on 8 December 2006 at about 8.30 pm, i.e. about one hour before the Mazda car was set on fire (evidence which fitted in with the phone-call referred to in paragraph 5 (iv) above).

7. Evidence about the second appellant's illegal possession on 11 January 2007 of a machine gun and ammunition, and in particular possession of 9 mm bullets of the type used in the shooting one month earlier (6 December 2006).

8. Evidence about the conversation in the car on 16 January 2007, involving the first and second appellants, including (i) references to "the Piper", such as a comment "Oh well, he's got to pay the Piper boy, an' the Piper's not a happy man". The jury would be entitled to assess those references against the background of the Piper letter received by David Lyons, the owner of Applerow Motors (the locus of the shooting), which referred to Mr Lyons' boys having to pay someone called "the Piper" £25,000 for drugs, with the result that a "feud" would stop, and lives could "go back to normal". (ii) Evidence about the comment made by the second appellant to the first appellant, namely "No matter what technology they've goat fuckin' leave wur phones an awe that behind". The jury would be entitled to link that comment to the sudden cessation of use of the second appellant's green mobile, the first appellant's orange mobile, and Raymond Anderson junior's blue mobile from 6 December 2006 onwards. (iii) Evidence of the second appellant's claim to the first appellant that, in the context of the Maryhill murder, Georgette Bailey had said "Aye, it was big Rammie an awe", which provoked laughter. (iv) Comments in the car conversation that the police would have the two appellants marked down as "dangerous", with the additional observation "They make ah move just shoot them".

9. The close association, both business and personal, between the first and second appellants.

10. Evidence establishing that John Corkish was not in the vicinity of Balmore Road or Vaila Street at the times of the shooting and the burning of the car on 6 and 8 December 2006 respectively.

[71] Again, each individual piece of evidence, viewed in isolation, might not appear sufficient to reach any firm conclusion: but when viewed altogether, there is, in our opinion, such a coherence and pattern in the evidence that it can be concluded beyond reasonable doubt that the second appellant was one of the two gunmen who carried out the shooting at Applerow Motors. In other words, the evidence outlined above was in law sufficient to entitle the jury to return a verdict of guilty against the second appellant in respect of the murder and attempted murders, without relying upon the evidence given by John Corkish. It follows that the direction quoted in paragraph [3] above was not a misdirection.

Decision

[72] For the reasons given above, we refuse the appeals against conviction. The appeals against sentence will be continued to a later date.