APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Reed Lord Emslie	[2011] HCJAC 37 Appeal No: XC818/06 OPINION OF THE COURT (GROUND 7B, NO.2) delivered by LORD EMSLIE in APPEAL AGAINST CONVICTION by IMRAN SHAHID Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: (i) Kerrigan, Q.C., C.M. Mitchell; Beltrami Berlow, Glasgow

(ii) Hamilton, L Prais; John Pryde & Co, Edinburgh

Respondent: Bain, Q.C., A.D., S. Tanner; Crown Agent

19 April 2011

Introduction

[1] On 8 November 2006, after a trial in the High Court at Edinburgh, the jury unanimously convicted the appellant of the abduction, assault and murder of a 15-year-old Glasgow schoolboy. By a majority, similar verdicts were reached in respect of a brother of the appellant and another co-accused. On the same date, all three accused were sentenced to life imprisonment and, in the appellant's case, the punishment part was set at 25 years. The relevant charge was in these terms:

"(1) on 15 March 2004 at Kenmure Street, Pollokshields, Glasgow, you Imran Shahid, Mohammed Faisal Mushtaq and Zeeshan Shahid did, while acting with Daanish Zahid and Zahid Mohammed ... assault Kriss Donald, now deceased, then aged 15 years and seize him by his clothing, repeatedly punch and kick him on the head and body, partially remove his clothing and abduct him, force him to enter a motor vehicle, namely motor vehicle registered number Y541 VNS, imprison him there against his will, present a screwdriver, a knife and a hammer at him, repeatedly twist said knife against his body, pretend that you were in possession of a firearm, and force him to accompany you in said vehicle to areas of Dundee and thereafter to Clyde Walkway, Glasgow and at said Clyde Walkway remove him from said motor vehicle, restrain him by the arms, repeatedly strike him on the body with a knife or knives or similar instruments, pour an accelerant over him and set fire to him and you did murder him; and it will be proved in terms of section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated".

[2] This was the second trial arising out of the murder of the deceased. In November 2004 Daanish Zahid ("DZ") and Zahid Mohammed ("ZM") had appeared for trial on a similar charge in the High Court at Glasgow. At that stage ZM pled guilty to the assault and abduction of the deceased, and also to having attempted to pervert the course of justice. These pleas were acceptable to the Crown, and ZM was then called as a Crown witness in the trial which proceeded against DZ. At the conclusion of that trial, DZ was convicted of the murder of the deceased and sentenced to life imprisonment with a punishment part of 17 years. Both ZM and DZ were subsequently led as Crown witnesses at the trial of the appellant and his two co-accused in 2006.

[3] In the course of appealing against his conviction and sentence, the appellant (under ground of appeal 7B) seeks to rely on the existence and significance of certain evidence which was not heard at his trial, namely evidence from DZ to the effect that the true perpetrators of the murder were Shahid Akram, Shafiq Akram and Liaquat Khan. According to the appellant, there was and is a "reasonable explanation" as to why DZ did not give the evidence in question. In particular, it is said, DZ and his family had been the subject of repeated death threats from these true perpetrators of the murder in the event that he revealed their identity in court, and he was accordingly too frightened to implicate them in any way.

[4] In due course a hearing was fixed to consider the "reasonable explanation" aspect of the appellant's ground 7B. On 8 October 2010, having considered affidavits sworn by DZ and several other persons, together with certain further documentation, the court took the view that these materials were prima facie capable of supporting the "reasonable explanation" advanced, and that it would be appropriate to hear the relevant evidence before deciding whether a "reasonable explanation" in fact existed. An evidential hearing on these matters has now taken place before us over a period of several days.

[5] On the morning of the third day of this hearing, senior counsel for the appellant intimated that certain difficulties had arisen which, in his judgment, made it professionally inappropriate for him to continue to represent the appellant. He therefore sought leave of the court to withdraw from the proceedings along with his junior and their instructing solicitors. This turn of events obviously gave rise to a serious problem where two days of evidence had already been heard and more was anticipated. It is to the great credit of those who withdrew from acting that they continued to use their best endeavours to assist the appellant to find suitable alternative representation with the minimum of delay. It is also to the great credit of the counsel and solicitors who agreed to take over in such circumstances, notably Mr Hamilton, that the hearing was able to recommence after an interval of only 48 hours. The court is grateful to all concerned for their part in upholding the best traditions of the legal profession in Scotland.

The law on "fresh evidence" appeals
[6] This was not in dispute. Section 106 of the Criminal Procedure (Scotland) Act 1995 provides inter alia as follows:

"(1) Any person convicted on indictment may, with leave granted in accordance with section 107 of this Act, appeal in accordance with this Part of this Act, to the High Court -

(a) against such conviction;

...

.....

(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings;

...

(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

.....

(3C) Without prejudice to subsection (3A), where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence -

(a) which is -

(i) from a person ...

who gave evidence at the original proceedings; and

(b) which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(3D) For the purposes of subsection (3C) above, 'independent evidence' means evidence which -

(a) was not heard at the original proceedings;

(b) is from a source independent of the person referred to in subsection (3C) above; and

(c) is accepted by the court as being credible and reliable.

.....".

[7] These provisions were considered in Campbell and Steele v HM Advocate 1998 JC 130, where the court envisaged a two-stage process. An initial question would be whether the documentary materials lodged in support of a "fresh evidence" ground of appeal were capable of supporting the "reasonable explanation" which the statute required. If so, the second stage would then be for the court to hear the evidence in question in order to determine whether a "reasonable explanation" truly existed. Only if it did would the substantive "fresh evidence" become accessible for the purposes of the appeal, and at that stage the court would have to decide whether that evidence would, if heard at the original trial, have been of such significance that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. As the court made clear in Al Megrahi v HM Advocate 2002 JC 99, at para 219, the test to be satisfied at that latter stage would be a high one since the verdict of a jury was not lightly to be set aside.

[8] For present purposes, however, we are not concerned with that final stage of the exercise, but only with the prior question whether there truly exists a "reasonable explanation", adequately supported, for the failure of DZ to give evidence incriminating Shahid Akram and others at the appellant's trial. In that context the Lord Justice Clerk (Cullen) in Campbell and Steele, at pages 146-7, commented as follows:

"The parties to the appeal appear to be at one in agreeing that the expression 'a reasonable explanation' fell to be interpreted in an objective way. It has two aspects. If what is put forward by the appellant is rejected as not genuine it cannot be an explanation. The Advocate-depute submitted that the appellant required to show that the explanation was true. If this entails that full legal proof is called for, I consider that this is over-exacting. It is enough in my view if the court is persuaded to treat the explanation as genuine. However, an explanation cannot be 'a reasonable explanation' if it is not adequate to account for the fact that the witness's evidence was not heard. ...

The requirement of subsec (3A) appears to me to precede consideration of the significance of the evidence in question as fresh evidence in the case. Thus, if there is not

'a reasonable explanation' of why it was not heard at the trial, access to it is denied; and questions as to the effect which it might have had at the trial do not arise for consideration. Accordingly it is appropriate to consider in the first place whether the conditions for the admission of that evidence can be satisfied."

DZ's position from 2004 to date

[9] According to affidavits sworn by DZ, and as he confirmed in the witness box before us, Shafiq and Shahid Akram repeatedly threatened to kill him and his family on the very day of the murder. Both in English and Urdu, these threats continued for some 20 minutes as they dropped DZ off at his home after the Mercedes car used in the abduction and murder had been set alight elsewhere in Glasgow. DZ took these threats seriously, given the Akram family's reputation for indiscriminate violence, and feared that they might as easily kill him or members of his family as they had just killed Kriss Donald. He was so frightened that, once inside the house, he went up to the attic and entered a series of text messages on a mobile phone which would be there as a record if anything happened to him. Taken together, these texts read as follows:

"This is daanish zahid if i have been murdered i was murdered by shafiq akram, shahid akram, zahid mohammed and liaquat khan, i was murdered because i drove ...

... The car against my will when shafiq akram kidnapped and murdered kriss donald and ziggy stabbed him in the back. They murdered kriss because ...

... Jamie wallace stabbed shafiq last week, liaquat only helped kidnap kriss and said he was going to say he was in a mental hospital if questioned by the police, ...

... But this is a lie as he knew exactly what he was doing, shafiq and shahid akram threatnd [sic] to kill me 20 minutes ago and i believe them because i saw them kill ...

... kriss 2 and a half hours ago."

[10] Some two weeks later, on 31 March 2004, notwithstanding the allegedly serious threats made to him by the Akram brothers, DZ gave a statement to police officers investigating the murder. In the course of that statement he claimed not to have seen the appellant for several weeks, and to have been working normally in his family's shop on the day of the murder. He then went on, however, to describe how there had recently been a lot of trouble between Asian and white boys in the vicinity of McCulloch Street; in particular, how white boys had had trouble with the Akram brothers (some of whom were named); and how Shafiq Akram had apparently been stabbed and injured a couple of days before the murder. He thus sought to point the police in the direction of the very people who had allegedly threatened his life, and that of his family, if he did any such thing.

[11] At his own subsequent trial, however, DZ lodged a special defence of incrimination, claiming that the murder was committed by the appellant and others. In the witness box, he gave a very detailed and specific account to the effect (a) that the appellant, apparently from motives of revenge following a nightclub incident involving a white youth, had been instrumental in the abduction, assault and murder of Kriss Donald; (b) that he (DZ) had been a frightened participant as the driver of the Mercedes car which, between the abduction and murder, had travelled to Dundee and back again to Glasgow; and (c) that in the course of the day's events he had twice been told to obtain petrol, first for use in the assault and murder of the deceased, and then for the burning of the car in a different part of the city. All of this was consistent with the ascertained location of calls from mobile phones which he and ZM agreed were theirs. According to DZ he was too frightened of the appellant, from long association, to refuse the co-operation which the appellant demanded.

[12] The evidence which DZ gave at his own trial in 2004, and by which he implicated himself in the murder to a degree which led to his conviction, was almost entirely consistent with the substantial body of evidence which the Crown later adduced, from ZM and a large number of other witnesses, at the appellant's trial in 2006. At that stage, however, DZ himself refused to confirm the truth of any of the evidence which he had given on oath two years earlier, maintaining in that context that he had been threatened, coached and told what to say by the real culprits, who were not now in the dock; that although these were males known to him, he could not name them or he would be killed; and that he had falsely incriminated the appellant and others in response to the real culprits' threats and instructions. In finding the appellant and others guilty as libelled, the jury must have entirely rejected DZ's claims, and instead accepted the substantial body of Crown evidence which matched what he had previously said at his own trial.

[13] From the above narrative, it can be seen that the evidence which DZ failed to give at the appellant's trial was not evidence concerning serious threats, coaching or instructions by the real culprits who were not then on trial, nor was it evidence to the effect that his previous incrimination of the appellant and others was false. On the contrary, all of that evidence was before the jury at the appellant's trial and plainly did not deter them from reaching a unanimous verdict of guilty. In broad terms, the "fresh evidence" now highlighted in DZ's affidavits and evidence comprises little more than (i) the identity of the real culprits; (ii) the true motive for the murder having been the stabbing of Shafiq Akram by a white boy, Jamie Wallace; and (iii) a slightly different account of the abduction and subsequent events involving a fruitless journey to Edinburgh, at 100mph or more, returning for a time to the west end of Glasgow, rather than the journey to Dundee, returning directly to Glasgow's east end, which had corresponded with mobile phone, filling station and other evidence. According to DZ, he and ZM had falsely accepted responsibility for mobile phones at the 2004 trial because the known location of relevant calls would divert attention away from Edinburgh. In that context, however, DZ struggled to explain how some of these calls could have been made by his own father to a mobile phone which was not his.

[14] With regard to the threats on the day of the murder which allegedly led him to enter text messages into a mobile phone at home, DZ in evidence graphically described how, after removing the SIM card, he had concealed the phone in a wall cavity, telling no one of its existence, and then suddenly remembered having done so nearly four years later in January 2008. By that time, as a more mature man, he had realised that it was wrong for the appellant and others to be serving life sentences for murder when the real culprits were still free men. He immediately contacted his younger brother Taabish Zahid ("TZ"), who he thought might have seen him return home on the day of the murder, and asked him to retrieve the phone and deliver it, not to his own solicitors to assist his own appeal against conviction, but to the appellant's solicitors in Dundee.

[15] A difficulty faced by DZ in the witness box was that, some four months earlier, he had written to the appellant's brother Ashan Shahid ("AS") in an unsuccessful attempt to persuade the latter to come forward and help incriminate the Akram brothers. This attempt was based on alleged threats, and admissions of murder, which the Akrams had made to AS, for onward transmission to DZ, on the eve of the appellant's trial in 2006. Somehow, however, the contemporaneous texts in the hidden mobile phone at home did not come to DZ's mind at that time.

[16] A greater difficulty affecting this chapter of DZ's evidence was that, when examined, the unsent texts were found to include reference to the deceased Kriss Donald by name, and with his unusual first name correctly spelt. Having already given evidence to the effect that he did not know the deceased, and had never come across him before the moment of his abduction, DZ struggled to explain how he could have managed to identify the deceased at all, far less master the unusual spelling of his first name. The spelling, he suggested, was "just a good guess", "a fluke", and of no significance; he might have seen the name somewhere else. As if this was not bad enough, DZ was unable to explain (i) how, contrary to his normal practice, he had left undeleted on the mobile phone a single call to the appellant on 14 March 2004 which just happened to support an innocent explanation which he was now volunteering for the appellant's jacket having been found in the burnt-out car following the murder; (ii) how a significant number of "calendar entries" had got into the concealed mobile phone between August 2004 and January 2006; or (iii) how the retrieved phone passed to solicitors in 2008 had come to contain a SIM card when, according to him, the original SIM card had been removed and disposed of in 2004. As regards the calendar entries, he even went so far as to suggest that they might comprise predictions from a much earlier date which he had somehow failed to erase.

[17] According to DZ, the Akrams' threats directed towards himself and his family were the same today as they had been in and after 2004. After the day of the murder, they had been repeated over a long period via ZM when both men were on remand at Polmont YOI in 2004, but in the face of cell location details a previous claim that ZM had had to be transferred elsewhere on account of "bullying" was withdrawn. Further threats were directed by Shafiq Akram to a mobile phone which DZ had managed to smuggle into prison, and thereafter similar threats from the Akram brothers were reported via AS. He (DZ) was still terrified of the Akrams, and took all of these threats seriously. Nevertheless, having been surprised when the appellant and his co-accused were convicted of murder in 2006, and with the benefit of greater age and maturity, he had decided to "do the right thing" and speak out in the appellant's favour. As a man rather than a boy, he was now prepared to speak out and risk whatever consequences might ensue.

The supporting evidence

[18] TZ explained how his older brother DZ had come home scared on the evening of 15 March 2004. There had, he said, been a commotion out in the street just before DZ came in. DZ had at once gone upstairs, unwilling to discuss what was wrong except to issue a warning that the Akrams were "fucking animals". Nearly four years later, TZ received a call from his brother, asking him to retrieve a mobile phone from where it was concealed in the attic of the house. He did so, cleaning it of dust and cobwebs, and (without being able to recall dates, people or places) delivered it to the appellant's solicitors in Dundee. He was adamant that he had never used the phone between 2004 and 2008; that its appearance suggested that it had lain undisturbed over that period; and that he had not inserted any SIM card into the phone prior to delivery.

[19] On 10 June 2007, TZ wrote to the appellant describing very recent threats to someone called Baber Din ("BD") from Shafiq Akram; prior threats made to DZ via TZ and BD in November 2006; and a complete account of the murder, incriminating the Akrams, which a terrified DZ had allegedly given him at Polmont, Perth or Dumfries Prison when told of these threats on a visit. Under cross-examination, TZ denied simply copying out material fed to him by someone else, but we note (a) that DZ himself gave no evidence of such a visit and (b) that, like TZ's earlier police statement on 30 March 2004, the letter made no mention of having seen DZ on the night of the murder.

[20] John Stewart ("JS"), a repeat offender who had spent much of his adult life in custody, gave evidence of having been an inmate at Polmont YOI when DZ and ZM were first remanded there in 2004. According to him, ZM was frequently to be overheard pressurising DZ, a quieter and more timid man, to say certain things at their forthcoming trial. DZ was to do what he was told, and (like the police) blame the appellant and others for the murder. As he acknowledged in cross-examination, however, what he heard could have been consistent with the appellant having committed the murder, and with DZ being pressurised to tell the truth. Terms in his affidavit such as "bullying" and "terrorising" might perhaps have been on the strong side, and if the men had been white he would, he said, just have told ZM to give DZ a break.

[21] Although JS wrote a letter to the appellant in 2007, trying to help him in his appeal, that had been on a different subject and had contained no reference to any alleged "bullying" of DZ in 2004. According to JS, no one had asked him to help the appellant out, although admittedly he had been visited in prison by AS (the appellant's brother) "quite a lot" or "only once".

[22] The witness AS had an appalling record of violent offending coupled with lengthy custodial sentences. He had only recently been released from prison after breaching a supervised release order, and further charges of assault, fraud, dangerous driving and a racially aggravated breach of the peace were currently pending. According to him, he had been approached in the street by Shafiq and Shahid Akram before the appellant's trial, and told to pass on a message to DZ to the effect that the latter and his family would be killed if the Akrams' names were mentioned in court. A knife was presented; the threats were "terrifying"; and AS had done as he was told. He could not recall when this had happened, or at what time of day, nor could be recall whether, in addition to writing to DZ, he might also have visited him in prison. He had not, however, thought to tell the appellant or his brother Zeeshan who were then on remand. DZ had replied, agreeing not to name the Akrams as the real culprits at the trial, and stressing the seriousness of the threats made.

[23] Even when asked by DZ in September 2007 to help the appellant by coming forward and telling what he knew, AS had refused. At a later date, he had mentioned the threats to the appellant, having "probably" visited him in prison, but could not now recall what the appellant's reaction had been. The appellant had, however, told him to go to the police, and in due course he had given a statement to the appellant's lawyer. As he explained in the witness box, his decision to speak out was reached when he himself felt relatively safe in prison, and when his family were on an extended trip to Pakistan. He could thus take a "short-term risk" and then, hopefully, live his life in peace. That did not, however, explain why, if the Akrams' threats were as serious as he claimed, he was now prepared to put his family's lives at risk.

[24] By way of illustrating the continuing seriousness of the threats, AS described how, after being released from custody on 30 April 2010, he had bought a new mobile phone. Busy with partying, he had made no calls on it, but had transferred a log of third party numbers into its memory from the deactivated SIM card out of his old phone. For some reason, one of these numbers belonged to Shafiq Akram, although he was not a friend and had allegedly been making threats towards him since 2006. He could not think why he had obtained or kept that number, although its retention would, he said, enable him to avoid any call that Shafiq Akram might make. Two days later, on 2 May 2010, (probably in the afternoon, he thought) the new phone rang. The name Shafiq Akram came up on the handset, and so AS hung up on him. There immediately ensued an exchange of text messages (timed by the service provider at around 11.00pm), in the course of which Shafiq Akram disclosed knowledge that AS and DZ had "been to the police". He went on to remind AS of previous threats by reference to what had happened to Kriss Donald, and mentioned how Shafiq Akram had sat outside DZ's house during his trial ready to kill him and his family if the Akrams' identity was revealed. The texts, AS agreed, contained a clear confession of murder, addressed to someone known to be in touch with the police, and he could suggest no reason why someone trying to avoid responsibility should have done such a thing.

[25] Under cross-examination, AS encountered further difficulty in explaining how Shafiq Akram could have known his new mobile number from which no calls had yet been made. He had, he suggested, told many friends of the new number, and someone must have passed it on. More significantly, AS was at a loss to explain how Shafiq Akram's number could have been on the SIM card of his old mobile when (i) that number was not registered until 3 July 2008, and (ii) by that date he (AS) was already in prison and had no access to his old phone. Even when faced up with the information that Shafiq Akram's phone had never been used outwith a 40-minute period on 2 May 2010, AS insisted that the apparent exchange of texts was not a fabrication designed to assist the appellant with his appeal.

The expert evidence
[26] Specialist forensic examination of a number of mobile phones yielded information which, at best for the appellant, cast serious doubt on the credibility and reliability of the lay evidence summarised above. At worst for the appellant, significant parts of that evidence had plainly been fabricated. The main features of this forensic evidence may be summarised as follows:

(i) As regards the mobile phone allegedly concealed by DZ between 2004 and 2008, that already contained a SIM card when submitted for examination by the appellant's solicitors in 2008. Where TZ and the relevant solicitors denied having inserted such a SIM card, this finding was inconsistent with DZ's evidence of having removed the SIM card from the handset in 2004. The SIM card had been registered on 11 January 2008, consistent with a verifiable incoming call from the service provider. Its number was, however, different from the "My phone" entry in the phone's contact log, and it had (surprisingly) never been used in that handset because such use would automatically have wiped out all pre-existing call log entries.

(ii) Only incoming SMS messages (texts) bore a verifiable time and date emanating from the service provider. All other call and SMS entries related to the time and date set by the user of the phone at a given stage. There was thus no means of verifying the time and date of the call allegedly made to the appellant on 14 March 2004, nor the time and date of the unsent text messages allegedly entered into the phone on the following day.

(iii) The first examination of the phone in 2008 also disclosed a significant sequence of calendar entries dated between August 2004 and January 2006. Many of these appeared to have been made by a female charting the progress of a new relationship, and their existence was inconsistent with the evidence of DZ and TZ as to the phone having allegedly lain undisturbed between 2004 and 2008.

(iv) Where the handset was well worn, consistent with regular use, it was highly unusual to find only one outgoing call (to the appellant, allegedly on 14 March 2004) stored in the memory.

(v) When re-examined in 2011, using more advanced software, the phone was found to contain records of 62 contact entries rather than the 19 which had been evident in 2008; records of 182 calls rather than the single one seen before; and also 111 text fragments, of which 58 dated from 2007 as verified by the service provider. Of the many calls, 47 were consistent with extensive use of the phone between December 2007 and January 2008, and in that latter period more than 21 different numbers had been dialled. According to the manufacturers' specifications, the phone's memory would hold only the last 10 outgoing calls and the last 20 incoming. The number of calls revealed here should therefore have "pushed" any prior call off the end of the memory. This created a real difficulty with respect to the apparent entry for 14 March 2004, and the expert witness Mr John Butler could think of no other explanation than that the "call" of 14 March 2004 had been "artificially created". He could not, admittedly, exclude the possibility that a similar entry had been on the phone at that earlier date and replicated later, but "fabrication" was the only way to explain the entry seen.

(vi) As regards the incoming text messages allegedly received by AS on 2 May 2010, these came from a number bearing to have been registered in the name of Shafiq Akram on 3 July 2008 (a date on and after which AS was in custody and had no access to his old mobile phone or its SIM card). The service provider was also able to report that the phone apparently registered to Shafiq Akram had never been used before the late evening of 2 May 2010. With the exception of three failed incoming calls in July and November 2010, the only activity on that phone account took place between 10.35pm and 11.15pm on 2 May 2010.

Submissions

[27] For the appellant, counsel invited us to accept the evidence given by DZ, TZ, JS and AS notwithstanding such discrepancies as had emerged during the hearing. On that evidence, he said, a "reasonable explanation" had been made out for the purposes of the appellant's ground 7B, with the result that the "fresh evidence" tendered would now fall to be considered at a future hearing. In reply, and founding heavily on the mobile phone evidence to which we have referred, the advocate depute maintained that the alleged explanation was neither genuine nor reasonable. It was, on the contrary, a complete fabrication and should be rejected in its entirety. Ground of appeal 7B must therefore now be refused.

Discussion

[28] On the evidence before us, we have no hesitation in concluding that the "reasonable explanation" advanced by the appellant in support of his ground of appeal 7B is not genuine and falls to be rejected. In exceptional circumstances, evidence of a witness being terrified into silence by death threats directed against himself or members of his family might conceivably qualify as a "reasonable explanation" for the purposes of section 106(3A), (3C) and (3D) of the 1995 Act. In our judgment, however, the evidence before us in the present case comes nowhere near satisfying the statutory requirements.

[29] An initial concern is that the affidavits from DZ, TZ, AS and others appear over-elaborate, containing as they do a wealth of detail from previous years which would have been beyond the expected recall of most ordinary people. The affidavits also appear to "dovetail" with one another to a greater than normal degree. Not surprisingly, therefore, when we came to hear the evidence of the witnesses concerned, we found their demeanour to be vague, hesitant and shifty in some areas where their affidavits had been precise, and our overall impression was of a concerted attempt to convince the court of an inherently improbable account. Looking broadly at the situation, it would have taken a great deal to persuade us that DZ's evidence at his own trial in 2004, and then at the appellant's trial in 2006, was distorted beyond recognition by fear of the Akram brothers. Where the alleged threats began in earnest on the day of the murder, it is astonishing that only two weeks later DZ was giving a statement to the police in which he not only pointed towards the Akrams as the likely suspects, but also supplied a motive for their involvement. Where the alleged threats were then reinforced by ZM throughout 2004, and thereafter by telephone and also via AS, it is extraordinary that, at the appellant's trial in 2006, DZ largely ignored them in repeatedly asserting that the real culprits were not in the dock; that these were males known to him; and that virtually all of the evidence which he gave at his own trial in 2004 was the result of death threats, coaching and instruction from that quarter. Where the alleged threats were "topped up" via AS and TZ in 2007, and further updated in the form of text messages allegedly received by AS on 2 May 2010, it is equally surprising that DZ should now be willing to ignore them to an even greater degree. If any risk involved in disclosing the Akrams' identity was as serious as DZ claimed, and if death threats extended to members of his family as well as himself, it is hard to understand a response which has, from an early date, put the lives of these family members in jeopardy.

[30] It would also have taken a great deal to persuade us that DZ's evidence at his own trial in 2004, specifically incriminating the appellant and others, was, through duress, false in every detail where (a) that evidence was entirely consistent with a mass of evidence led by the Crown at the appellant's subsequent trial in 2006; (b) some of the details on which DZ claimed to have been coached and instructed were wholly inconsequential; and (c) there was a high degree of likelihood that other details (such as ownership of a mobile phone to which his father and others made calls on the day of the murder) were true. The wealth of circumstantial detail which DZ volunteered at his own trial in 2004, and which was confirmed from other sources in 2006, strikes us as inconsistent with his present account of wholesale fabrication at the behest of third parties.

[31] It is also in our view significant that ZM, who specifically implicated the appellant and others at their trial in 2006, has not come forward with "fresh evidence" in these proceedings. Similarly, it is significant that no member of the Akram family has been adduced as a witness, especially where Shafiq and Shahid Akram are alleged to have made verbal, and even written, confessions of murder to AS between 2006 and 2010. In the absence of supporting evidence from these sources, it may be thought all the more likely that the evidence given by DZ at his own trial in 2004 was true, and that any pressure exerted on him by ZM when on remand at Polmont was designed to persuade him to tell the truth despite his acknowledged fear of the appellant. This possibility was acknowledged in evidence by the witness JS, and we are therefore untroubled by his account of what he overheard.

[32] Such general considerations, however, pale into insignificance when compared with the disastrous attempt to use mobile phones in support of the key allegations in this case. This evidence was no doubt intended to bolster and confirm the alleged recollection of DZ and AS in particular, but unfortunately for the appellant it has to our mind had precisely the opposite effect. So far as the unsent texts of 15 March 2004 are concerned, we simply do not believe that DZ was then in a position to identify the deceased, far less to spell his unusual first name correctly. Even the idea of leaving critical texts in a concealed mobile phone, of whose existence no one else knew, seems bizarre, and there is no evident explanation for the later presence of an unused SIM card in that phone when, according to DZ, its SIM card was removed in 2004. Astonishingly, forensic analysis has disclosed significant use of that phone between 2004 and 2008, and indeed a volume of calls which would automatically have caused any genuine call entry from 14 March 2004 to be deleted from the memory. In line with Mr Butler's evidence, we have no difficulty in regarding the relevant entry as "artificial" and as a deliberate fabrication designed to help DZ provide the appellant with an explanation for the discovery of his jacket in the burnt-out murder vehicle. Furthermore, the significant use of the phone between 2004 and 2008 is impossible to reconcile with the evidence of DZ and his brother TZ to the effect that the phone lay, or must have lain, undisturbed in its hiding place throughout that period. In summary, the evidence regarding this mobile phone has in our opinion effectively destroyed the credibility of both DZ and TZ and of the "reasonable explanation" of which it formed a significant part.

[33] In our view the credibility of AS has also been destroyed by the forensic evidence bearing on the alleged exchange of text messages on 2 May 2010. For one thing, AS had no satisfactory explanation as to why Shafiq Akram's number was stored in his old mobile phone, nor as to why he should have kept it and purported to transfer it into the new phone which he purchased on 30 April 2010. For another, he could give no satisfactory explanation as to how Shafiq Akram, who was in no way a friend, could have known the number of a new phone which was only two days old. More tellingly, the claimed presence of Shafiq Akram's number on the old phone could not stand against the revelation, from the relevant service provider, that that number had only been registered in July 2008 when AS was already in prison and had no access to the phone in question. We are therefore driven to the conclusion that the apparent texts of 2 May 2010 are also a fabrication, and that the protestations of AS to the contrary cannot be believed. AS was in any event a most unimpressive witness, allying an appalling record of criminality to a vague and at times shifty appearance in the witness box. He seemed to look to his affidavits for help with the details of key events which might have been expected to stand out in his memory, such as the alleged receipt of death threats in the street in 2006 and by mobile phone in 2010. He was also suspiciously reticent as to the nature and extent of his contacts with DZ and with the appellant, and all in all we are unable to accept AS as a credible or reliable witness.

[34] That is, we think, sufficient to dispose of the issues before us. No "reasonable explanation" for DZ's failure to incriminate the Akram brothers at the appellant's trial has been made out. Indeed, as it seems to us, the evidence which we have heard from DZ, TZ and AS, along with the underlying affidavits, reflects what can only be described as an elaborate and sophisticated attempt to deceive this court into admitting "fresh evidence" pursuant to ground 7B of the appellant's appeal. At this point, of course, we cannot hazard a guess as to who devised the idea in the first place, or who was responsible for the fabrication of mobile phone entries in that connection, but in our view the matter is so serious as to merit the fullest and most urgent investigation at this stage.

Disposal

[35] For all of the foregoing reasons, we hold that no "reasonable explanation" has been made out for the purposes of section 106(3A), (3C) and (3D) of the 1995 Act. The related "fresh evidence" is therefore not accessible for consideration by this court, and ground 7B of the appellant's appeal must be refused.