APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Hardie	[2011] HCJAC 27 Appeal No: XC88/10 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by GARY SCOTT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Duguid QC, Burns Solicitor-Advocate; Gilfedder & McInnes

Respondent: P Ferguson QC, Advocate depute; Crown Agent

15 March 2011

Introduction

[1] On 12 November 2009 the appellant stood trial at Glasgow High Court charged with inter alia murder and assault. His co-accused were his brothers Ryan and Andrew Scott, and two others namely Brian Smith and James Gardiner. In the course of the trial, the Crown withdrew the libel in respect of certain more minor charges. The remaining charges against the appellant were in the following terms:

"4. On 24 May 2009 at Woodhall Road, Wishaw, outside the Cambusnethan Miners Welfare Club, you Ryan Scott, Gary Scott, and James Brian Smith did, whilst acting together, assault Brian Costello ... and did punch him on the head, whereby he fell, and thereafter repeatedly punch, kick, jump and stamp on his head and body, all to his severe injury and you did murder him.

5. On 24 May 2009 [at the same locus] you Ryan Scott, Gary Scott, James Gardiner and Andrew Thomas Scott did, whilst acting together, assault Derek Lawson ... and did repeatedly punch, kick and stamp on his head and body, all to his severe injury and permanent disfigurement."

[2] On 9 December 2009 the appellant was convicted by majority verdict of culpable homicide (charge 4) and by unanimous verdict of assault with aggravations (charge 5). Ryan Scott was acquitted of charge 5 (the Crown having withdrawn the libel against him) but was convicted together with Brian Smith of assaulting Brian Costello to his severe injury (charge 4). James Gardiner was acquitted of charge 5, the Crown having withdrawn the libel against him. Andrew Scott was also acquitted of charge 5, but by the jury's "not proven" verdict.

[3] The appellant appeals against conviction. During the appeal hearing, reference was made to the trial judge's report summarising much of the relevant evidence; a note of his decision issued after legal submissions and prior to his charge; his charge to the jury; and the minutes of proceedings. Certain productions were available, namely a CCTV film showing an intermittent sequence of events occurring outside the club, stills taken from the film, and further photographs. These productions were not viewed by the appeal court.

Sequence of events

[4] As the trial judge explains in his report, the incident outside the club was a fast-moving, confused event, involving people affected by drink. Nevertheless we consider that the evidence of the witnesses together with the intermittent CCTV recording (as described by the judge in his report), entitled the jury to conclude that the appellant was involved in the following sequence of events.

[5] On Sunday 24 May 2009, Brian Smith (then aged 22) held a christening for his baby daughter at a church in Wishaw. The christening was attended by the appellant (then aged 22), his brother Ryan Scott (then aged 25), and others. After the christening, many of the guests went to the church hall for a celebratory drink. They then went to the club. There, Ryan Scott was seen by at least one witness, sitting drinking with a group of 15 to 20 people.

[6] Also at the club were Brian Costello ("the deceased") and his wife Angela, in the company of Derek Lawson and his wife Isobel. They were enjoying a social outing. They had no connection with the christening party.

[7] At about 20.50, the deceased walked outside the club in the direction of the pavement. At 20.54.02 (as recorded on the CCTV film) he appeared to become involved in what seemed initially to be a minor altercation. He was recorded on the film standing at the gateway of the club facing three people, identified as the appellant, his brother Ryan Scott, and a third person Curtis Biggam. At about that time, Brian Smith could be seen walking from the club towards the gateway. The deceased was seen to put his hands up, palms forward, which the jury would be entitled to interpret as a placatory gesture. The deceased's wife saw her husband involved in some sort of confrontation, and shouted to their friend, Derek Lawson, "Get Brian!" From that, the jury would be entitled to infer that the deceased's wife was asking Mr Lawson to extricate the deceased from a difficult situation. At about that time, the appellant punched the deceased. Mr Lawson moved towards the deceased, and the jury would be entitled to infer that he did so in order to help him. However Mr Lawson was intercepted by the appellant, who punched and kicked him so that he fell to the ground unconscious. Mr Lawson did not therefore manage to reach the deceased or to help him. The deceased meantime was the subject of punches, kicks, and stamps delivered by (according to witnesses) Ryan Scott and Brian Smith. Witnesses either identified Ryan Scott and/or Brian Smith in court as the assailants, or as resembling the assailants, or in their evidence described the assailants as wearing certain clothing which was consistent with those accused's clothing that night. The whole incident lasted about 44 seconds from beginning to end. Towards the end, Ryan Scott began pushing his brothers (the appellant and Andrew Scott) away from the deceased and Mr Lawson, both of whom were by then lying injured on the ground some 15 yards apart - the deceased on the pavement, and Mr Lawson on the roadway. The appellant, Ryan Scott and Brian Smith then left the scene together.

[8] When the deceased was taken to hospital, he was found to have suffered a subarachnoid haemorrhage from which he did not recover. He subsequently died. Evidence from pathologists, as noted by the trial judge in his report at pages 27 to 28, was as follows:

"... The deceased died as a result of a severe head injury, specifically from a traumatic subarachnoid haemorrhage, i.e. bleeding over the base of the brain from a tear in the right vertebral artery. The bleeding would have caused pressure on the vital structures in the area and would probably also have had more general effects on the blood flow to the rest of the brain resulting in widespread damage with irreversible unconsciousness and eventual death. The vertebral artery tear was the result of a blow to the head which probably caused the vessel to stretch as the head was thrust backwards. Typically in such cases, the blow is to the side of the head below or behind the ear, not necessarily on the same side as the tear and not necessarily hugely forceful. It is also typically the case that the person becomes unconscious very quickly and often dies within a matter of minutes ...

The pathologists could not say with confidence when the blow would have been inflicted. The commonest scenario was that when such a blow was inflicted the victim would collapse right away but [there were] cases where people could move for a short period and then collapse ...

... Subarachnoid haemorrhage was very rare and involved an impact usually to the neck below and behind the ear causing a twisting of the vessel. The impact did not need to be particularly forceful. All the other injuries were minor and irrelevant to death. They were the kind of thing which one would not be surprised to see resulting from a minor scuffle. One blow by one individual had killed [the deceased]. There was a significant punch or kick which had caused the haemorrhage but everything else was minor and irrelevant to the death ..."

The trial

[9] As noted above, the appellant was charged along with four co-accused. Charge 4 was a charge of murder of the deceased by Ryan Scott, the appellant, and Brian Smith "whilst acting together". Charge 5 was a charge of assault of Derek Lawson to severe injury and permanent disfigurement by Ryan Scott, the appellant, James Gardiner and Andrew Scott "whilst acting together" (although Ryan Scott and James Gardiner did not ultimately go to the jury on this charge: see paragraph [2] above).

[10] At the close of the Crown case, as narrated in the preamble in the Note of Appeal, the defence made submissions in relation to charge 4 to the effect that there was "insufficient evidence to entitle a conviction for murder in respect of all three accused" (namely the appellant, Ryan Scott and Brian Smith). The trial judge repelled those submissions. In so doing, he issued a written note containing his reasons, including the following passages:

"... The thrust of the submissions is that on any view of the evidence the jury would not be entitled to return a verdict of murder. I respectfully disagree, subject to what I shall say shortly. The jury could hold that the fatal blow was struck in the course of an attack involving punching and particularly kicking to the head ...

... In my opinion there is force in the Advocate depute's contention that the evidence at its highest for the Crown shows some degree of concert in this case. I say some degree because I am not satisfied that it can be affirmed that there was concert from beginning to end ...

... As to GS [the appellant], the jury could infer that he took out Derek Lawson to prevent him from rendering assistance to the deceased, and they could hold that he was in concert with the others throughout, provided he knew what they were doing. They may take a different view. If they think that he had finished with the deceased and that the assault on Mr Lawson was an entirely separate matter then they could only convict GS of assault on the deceased ... He could ... only be convicted of homicide ... if the jury were satisfied that he was in concert with the others from beginning to end ..."

[11] The Advocate depute then addressed the jury seeking inter alia convictions of murder against the appellant, Ryan Scott and Brian Smith on the basis of concert. The defence took the view that the Advocate depute's speech demonstrated an approach inconsistent with murder. They accordingly renewed their submissions for directions that the jury could not convict of murder. Counsel for Ryan Scott and Brian Smith emphasised that only one blow had caused the fatal haemorrhage, and argued that as the one blow might have been the very first blow delivered by the appellant (occurring, on one view of the evidence, prior to any involvement of Ryan Scott and Brian Smith), their clients should not be facing a charge of homicide but only of assault.

[12] Having heard the submissions in relation to charge 4, the trial judge ultimately directed the jury that they could convict Ryan Scott and Brian Smith only of assault (with such aggravation as was thought appropriate). He also directed the jury that they could at most convict the appellant of culpable homicide, not murder. As he explained at page 30 of his report to this court:

" ... I was of the view, on the evidence, that the punch [the first blow delivered by the appellant] could properly be said to have been delivered before the attack developed into one which could be said to evince murderous intent, and accordingly, since it could not be ruled in or out as the fatal blow, it would be wrong to allow the jury to convict him of any more than culpable homicide. On reflection, it may be that that approach was somewhat favourable to the appellant, but it does not, I think, have any bearing on the grounds of appeal."

He further directed the jury that, as it could not be known which blow had in fact caused the death, they could convict the appellant of culpable homicide only if they were satisfied that the appellant had acted in concert with Ryan Scott and Brian Smith from the beginning to the end of the incident of violence.

[13] The jury ultimately brought in the verdicts noted in paragraph [2] above. The appellant was sentenced to 6 years imprisonment; Ryan Scott and Brian Smith were each sentenced to 15 months imprisonment.

Appeal against conviction

[14] The appellant's Note of Appeal against conviction states inter alia:

Ground 1: There was insufficient evidence to entitle the jury to conclude that the appellant was acting in concert with the co-accused in assaulting the deceased whilst he was engaged in the assault on Derek Lawson (DL). The jury were directed that they had to be satisfied that the appellant was acting in concert 'from the beginning to the end', but there was no evidence to entitle this conclusion. As stated in his ruling on the submissions regarding the murder charge, the trial judge observed that the evidence at its highest showed 'some degree of concert' but he was 'not satisfied that it can be affirmed that there was concert from beginning to end'. That being so, the charge of culpable homicide ought to have been withdrawn from the jury.

Ground 2: There was an important inconsistency in the evidence relied upon by the Crown which was not addressed by the trial judge in directions. The Crown appeared to seek a conviction on the basis that by assaulting DL the appellant was acting in concert in the assault with the deceased - but at the same time the jury could rely upon witnesses who spoke to seeing the appellant or a man resembling the appellant being directly involved in assaulting the deceased. This could only have been at a time when the appellant was assaulting DL. These two pieces of evidence were irreconcilable and inconsistent with each other. Both were left to the jury. The trial judge failed to direct the jury that there was an inconsistency and that they could not rely upon both in order to convict (Charge at p 42).

Ground 3: Further and in any event the evidence of the witnesses Graham and Cullion [in fact, Costello] identifying the appellant as involved in assaulting the deceased was of such poor quality no reasonable jury would be entitled to rely upon it to conclude the appellant was acting in the way they described.

Ground 4: The trial judge failed to properly direct the jury on the basis upon which they could convict of the culpable homicide of the deceased by the appellant in his assault of DL. He directed them that if they were not satisfied that the appellant's assault on DL 'was anything other than a completely different assault with no connection with what was happening with Mr Costello at all, then you could not convict of culpable homicide'. (Charge p 44/17-21). This was confusing. It did not make clear that:-

(a) The jury required to be satisfied that the assault on DL was part of the concerted attack on the deceased by means of rendering effective assistance;

(b) it did not specify that the jury required to be satisfied that the appellant was 'in knowledge of the mortal purpose' (Hume I at p 274) and specifically knew of the continuing assault on the deceased - not merely that he had knowledge of the actors/co-accused general malice or evil design;

(c) that appellant's intention or mens rea in the assault on DL was to render assistance in that ongoing assault - that he intentionally acted as part of the 'common' purpose and that he was aiming at the same crime.

Ground 5: The trial judge failed to properly direct the jury on the position of the Crown. The Crown addressed the jury seeking a murder conviction for all three accused. The trial judge reduced the charges in his directions. He reduced the charges against the co-accused to assault notwithstanding that the initial assault by the appellant was inconsistent with being the fatal blow. No Crown speech or explanation was given. The issue is inadequately addressed by the trial judge in the Charge at p 4-5. No correction is made of the Crown speech seeking convictions for murder. The jury may well have taken into account the Crown speech to the prejudice of the appellant in their conviction on the most serious charge available to them.

Submissions

Submissions for the appellant

[15] Senior counsel presented the submissions for the appellant in two chapters, taking Grounds 1 and 4 together, and then Grounds 2, 3, and 5.

Grounds 1 and 4

[16] Ground 1: Senior counsel submitted that there had been insufficient evidence to entitle the jury to conclude that the appellant was acting in concert with both Ryan Scott and Brian Smith from the beginning to the end of the attack upon the deceased. Counsel drew attention to gaps, confusions, and discrepancies in the evidence as recorded in the trial judge's report. He contended that, whilst there might be sufficient evidence entitling the jury to conclude that the appellant and his brother Ryan Scott were acting in concert, there was insufficient evidence from which they could infer concert between the appellant and Brian Smith. There had been subsequent activity on the part of Brian Smith. On a proper view of the evidence, Brian Smith had carried out a separate and isolated attack on the deceased after the appellant's involvement with the deceased had come to an end. This was a case of spontaneous concert. There was no evidence of antecedent concert. There was no evidence that the appellant had any knowledge that Brian Smith had arrived at the scene, or that he was going to attack the deceased. If concert with both Ryan Scott and Brian Smith could not on the evidence be established, the appellant could not be held responsible for every blow inflicted. Thus on the basis of insufficiency of evidence, the conviction of culpable homicide should be quashed, and a conviction of assault (with any aggravations thought appropriate) substituted.

[17] Ground 4: Counsel further contended that the trial judge had failed to give the jury proper directions on concert. Brian Smith assaulted the deceased after the appellant and Ryan Scott assaulted him. There was no evidence suggesting that the appellant could have anticipated that Brian Smith would do so. Yet nothing was said to the jury about whether, on the evidence, it was possible to regard the appellant as being in concert with Brian Smith. Nothing was said to suggest that it was important whether or not the appellant could be regarded as being in concert with Brian Smith. Nothing was said about the timing and involvement of Brian Smith. The judge had not directed the jury how to deal with the possibility that Brian Smith began an assault upon the deceased after both the appellant and Ryan Scott had ended their attack upon him, and apparently (on the evidence) without the appellant's knowledge.

Grounds 2, 3, and 5

[18] Ground 2: Counsel submitted that there were some parts of the evidence which appeared to be irreconcilable with other parts. In particular, the Crown case appeared to be that the appellant was acting in concert with the others by assaulting Derek Lawson; yet the Crown led witnesses who described the appellant as being directly involved in the assault upon the deceased at a time when other evidence suggested that the appellant was involved in assaulting Mr Lawson. The judge had failed to direct the jury that they could not rely upon both pieces of conflicting evidence in order to convict.

[19] Ground 3 focused upon two eye-witnesses, Michelle Graham and Catherine Costello (not, as stated per incuriam in the Grounds of Appeal, a witness Julie Cullion). Each witness identified the appellant as having assaulted the deceased, but made certain concessions and qualifications in cross-examination. Counsel submitted that their evidence, noted in some detail in the judge's report, was of such poor quality that no reasonable jury would be entitled to rely upon it.

[20] Ground 5 concerned the fact that the Advocate depute had addressed the jury seeking convictions for murder against all three accused. The trial judge in his charge directed the jury that they could convict Ryan Scott and Brian Smith only of assault, and the appellant only of culpable homicide failing which assault (but not murder). But the trial judge had not given sufficient directions to the jury to avoid their being influenced by the Advocate depute's speech. As the Note of Appeal explains:

"The jury may well have taken into account the Crown speech to the prejudice of the appellant in their conviction on the most serious charge available to them."

Submissions for the Crown

[21] The Advocate depute submitted that the jury were entitled to take into account both the CCTV footage and the eye-witnesses' evidence. Despite defence attempts to undermine the evidence of Michelle Graham and Catherine Costello, their evidence was significant and the jury were entitled to rely on it. The jury were entitled to draw an inference from all the circumstances (including the very short period during which the violence occurred) that the appellant must have been aware of the other persons attacking the deceased. The three accused were all known to each other. They all left together after an incident which lasted only 44 seconds. In the circumstances it was wrong to overanalyse what happened into "atomic particles". The trial judge made it clear that, as it was not known which blow was the fatal one, the appellant must be proved to have been involved when any blow was inflicted upon the deceased. The jury were directed that if they took the view that the appellant had, at the time the fatal blow was inflicted, been engaged in an independent fight with Mr Lawson, then the appellant could not be convicted of culpable homicide. But it was open to the jury on the evidence to conclude that Brian Smith arrived at the locus and the appellant then intercepted Mr Lawson to prevent him from assisting the deceased. The jury were entitled to regard all three accused as a group, who knew each other, were in each other's company, and left the locus together. None of the three had dissociated himself from the others. Thus the jury were entitled to conclude that all three were engaged as a pack; that the appellant was involved from beginning to end; and that the appellant was responsible art and part for the death of the deceased. No miscarriage of justice had occurred. The appeal should be refused.

Discussion
Grounds 1 and 4

[22] Ground 1: In our view there was a clear sufficiency of evidence entitling the jury to conclude that the appellant was acting in spontaneous concert with both Ryan Scott and Brian Smith from the beginning to the end of the attack upon the deceased. There were many strands of evidence entitling the jury to reach such a view. There was evidence from which the jury could infer that the appellant, Ryan Scott and Brian Smith were in each other's company and were part of the same group. The evidence established that they had all attended the christening of Brian Smith's daughter, consumed drink at the church hall, and thereafter had gone to the club. In the course of the incident outside the club, the three were recorded on film by the CCTV camera in varying degrees of physical proximity to each other. For example, the CCTV film recorded Brian Smith walking from the club towards the gateway at about the time when the deceased was recorded at the gateway facing three people (the appellant, Ryan Scott and Curtis Biggam). Further, the evidence of eye-witnesses such as Amanda Evans, Julie Cullion, Daniel Jones, Michelle Graham and Catherine Costello also entitled the jury to draw the inference that the three were acting together when dealing with the deceased and Derek Lawson. There was evidence entitling the jury to infer that the appellant, having punched the deceased, actively prevented Derek Lawson from coming to the assistance of the deceased, thus enabling Ryan Scott and Brian Smith to have unobstructed access when punching and kicking the deceased. There was evidence that the entire incident of violence lasted only 44 seconds, during which time the deceased was assaulted by each of the appellant, Ryan Scott and Brian Smith. There was no evidence that the appellant tried to distance or disassociate himself from the actings of Ryan Scott and Brian Smith. On the contrary, as the Note of Appeal prepared on behalf of the appellant records (in our view, accurately):

"All of the accused were known to each other, they were together before the attack and they left together at the end of the incident."

The trial judge formed the same view, noting at the foot of page 31 of his report:

"If I have not made it clear already, I accept that there was evidence that the accused were all known to each other, that they were together before the attack and that they all left together."

There was evidence that, when the appellant, Ryan Scott, and Brian Smith left the scene together, the deceased and Mr Lawson were both lying injured on the ground, some 15 yards apart - the deceased on the pavement, and Mr Lawson on the roadway.

[23] Furthermore, as noted earlier, the 44-second incident of violence was fast-moving. Many of the eye-witnesses were affected by drink. In those circumstances, it is not perhaps surprising that discrepancies arose in the evidence. But the jury were entitled to accept parts of a witness's evidence, and to reject other parts. It was open to the jury to accept, for example, evidence about the identity of an assailant, and about what he was doing to whom, but to reject the witness's recollection about the precise timing or sequence of events. Bearing in mind that the jury were entitled to pick and choose, there was, in our view, ample evidence available to the jury entitling them to conclude that the appellant was acting in concert with his co-accused Ryan Scott and Brian Smith from the beginning to the end of the incident; that he actively associated himself with a common criminal enterprise which had as its purpose a punching, kicking, jumping and stamping attack upon the deceased; that part of the appellant's contribution to that enterprise was his interception of Derek Lawson who was coming to the deceased's aid; and that the appellant was accordingly responsible for every punch, kick, jump and stamp inflicted upon the deceased from the beginning to the end of the incident, whether or not he personally inflicted them.

[24] We should add that the appellant's Note of Appeal relies inter alia upon a tentatively expressed provisional view about concert in the judge's written ruling, quoted in paragraph [10] above. However the jury (and not the judge) were the masters of the facts. The question whether or not there was concert from beginning to end was a matter for the jury, properly directed, to assess on the basis of the evidence they had heard. Indeed that very point was emphasised by the judge later on in his written note, when he observed:

"He [the appellant] could still only be convicted of homicide at all though if the jury were satisfied that he was in concert with the others from beginning to end [emphasis added]."

In this case, the jury heard all the evidence, and were properly directed about concert. The ultimate decision as to whether the Crown had established that the appellant acted in concert with Ryan Scott and Brian Smith from the beginning to the end of the entire incident of violence, was a matter for the jury.

[25] In our view therefore the first Ground of Appeal has no merit. It is refused.

[26] Ground 4: We consider that the trial judge in his charge made it clear to the jury that they could not convict the appellant of culpable homicide unless they were satisfied that:

(i) The appellant was proved knowingly and actively to have engaged with others in committing a crime (namely an assault upon the deceased), and what happened was done in furtherance of that criminal purpose. The relevant passages in the judge's charge are pages 15 to 20, and pages 48 to 54.

(ii) Punching, kicking, jumping and stamping by those involved in the attack could reasonably have been anticipated by the appellant during the course of the crime: see the judge's charge page 17 line 16 to page 18 line 5; page 51 line 13 to page 53 line 3.

(iii) The appellant intercepted Derek Lawson and assaulted him in order to prevent Mr Lawson coming to the deceased's assistance: see the judge's charge page 19 line 14 to page 20 line 3; page 53 line 19 to page 54 line 8.

(iv) The appellant was actively associated with the common criminal purpose and the concerted attack involving punching, kicking, jumping and stamping on the deceased "from beginning to end", i.e. from the very first moment when the deceased was physically attacked until the very last moment of the violence: see the judge's charge page 14 lines 3-10; page 18 lines 8-12; page 19 lines 3-6 and 14-24; page 33 lines 1-5; page 53 lines 6-19; page 54 lines 8-12. Moreover at page 16 lines 17-22, the trial judge specifically directed the jury as follows:

"... if you go away, [if] you were satisfied that someone had left and was no longer a participant, if someone else committed an assault, then the person who had gone away would not be in concert with the person who independently committed an assault. There is no concert between the two of them, and that is something that you will have to consider very carefully in this case."

Those directions were apposite to the contention being advanced on behalf of the appellant, namely that on a proper view of the evidence, the appellant had punched the deceased once and then left him alone, whereupon the deceased was attacked by another or others (in particular by Brian Smith) in what should be seen as an isolated assault. The judge in effect repeated the direction at page 53 lines 3-5 of his charge.

[27] In our view the trial judge's directions cannot be criticised. We refuse the fourth Ground of Appeal.

Grounds 2, 3, and 5

[28] Ground 2: As already noted, in the context of a fast-moving incident with witnesses affected by drink, it was not surprising that the evidence threw up inconsistencies such as the one referred to in the Second Ground of Appeal (i.e. a witness apparently seeing the appellant or a man resembling the appellant assaulting the deceased at a moment when other evidence suggested that the appellant was engaged in assaulting Derek Lawson). It was the jury's task to weigh up and assess the evidence, and to make any necessary decisions when faced with apparently irreconcilable evidence. It was open to the jury to accept parts of a witness's evidence, and to reject other parts. Thus the core of a witness's evidence might be accepted, while other parts (for example, the precise time of an event, or the order in which events occurred) might be rejected. In our view, it was unnecessary for the trial judge to comment upon any of the factual discrepancies which emerged. The jury were instructed that it was their function to decide what evidence to accept and what evidence to reject. The jury must be presumed to have followed that instruction.

[29] In our opinion therefore there is no merit in the second Ground of Appeal, and it is refused.

[30] Ground 3: Michelle Graham and Catherine Costello each gave evidence identifying the appellant as involved in assaulting the deceased. Their evidence is summarised in the judge's report at pages 16 et seq, and 20 et seq. While their evidence contained changes in position, qualifications, and retractions, it cannot in our view be said that either witness's evidence was of such poor quality that no reasonable jury would be entitled to rely upon it. Ground of Appeal 3 is accordingly refused.

[31] Ground 5: As noted in paragraph [11] above, the Advocate depute, when addressing the jury, sought convictions of murder in respect of each of the appellant, Ryan Scott, and Brian Smith. However the trial judge in his charge ultimately directed the jury as noted in paragraph [12] above. We do not accept that this issue was inadequately addressed by the judge. At the outset of his charge, the judge directed the jury that they were the masters of the facts, but that he was "responsible for all matters of law", and that they "must accept the law" from him (page 1). Later, at pages 4 to 5 et seq, and page 10, he gave the jury explicit directions explaining that he had "considered legal submissions [and] considered the sufficiency of the evidence as to whether this case can fall within the definition of murder which requires particular ... criminal intent", and that he had decided that it did not. As a result, he directed them in law that the only verdict open to them in respect of each of Ryan Scott and Brian Smith was one of assault, with any aggravation considered appropriate, and in respect of the appellant, the jury could only convict of culpable homicide, failing which, assault (with aggravations, if appropriate). The instructions were clear, and the jury must be assumed to have followed them. It was, in our view, unnecessary for the trial judge to say anything further about the Advocate depute's speech. It would have been obvious to the jury that matters had moved on since that speech, and that the judge was giving them the directions in law which they must apply and which, to the extent that the directions contradicted anything that counsel or the Advocate depute had said in their speeches, superseded the latter. In those circumstances there was no need for an explicit correction to be made of the Crown speech.

[32] The fifth Ground of Appeal is accordingly refused.

Decision

[33] For the reasons given above, we have been unable to identify any insufficiency of evidence, misdirection, or unreasonable verdict amounting to a miscarriage of justice. We refuse the appeal against conviction.