APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Drummond Young
Appellant: McConnachie QC, Tait; Capital Defence Lawyers, Edinburgh
Respondent: Scullion, Advocate depute; Crown Agent
19 September 2012
 On 3 October 2011, the appellant and her co‑accused Anthony Malloy were found guilty of murder in the following terms:
"On 2 December 2010 at Flat 0/1, 62 Calder Street, Govanhill, Glasgow and within the common close there, you Anthony Francis Malloy and Laura Stewart did, whilst acting together, assault Martin Vaughan, residing there, and repeatedly punch him on his head and body, repeatedly kick and stamp on his head and body, seize hold of him and drag him from the common close into said flat, repeatedly strike him on his head and body with a pole, a bottle, ornaments or similar implements whereby he was so severely injured that he died on 4 December 2010 at the Victoria Infirmary, Grange Road, Glasgow and you did murder him; and you Laura Stewart did previously evince malice and ill will towards him ..."
 The appellant now appeals against conviction, contending that the judge misdirected the jury when he told them at page 37 of his charge:
" ... A suggestion was made that you could find one accused guilty of murder and the other of culpable homicide. In the state of the evidence in this case, I do not consider that there is a basis for doing that, and I direct you that that option is not open to you."
The appellant contends that the jury were deprived of the opportunity of convicting her of the lesser offence of culpable homicide, even although convicting her co‑accused of murder.
The circumstances of the offence
 The trial judge in his report set out the circumstances of the offence as follows:
" The appellant Laura Stewart had previously been in a relationship with the deceased. By the time of the murder their relationship had broken up and she was living with another man. She was still visiting the deceased from time to time, and they would drink and take drugs together. By all accounts the relationship had been a very stormy one; from time to time each would assault the other. The co‑accused Malloy did not know the deceased and had never met him prior to the day of the murder. Up until a relatively short time before the murder he had been living in Ireland. The two accused did not know each other although each vaguely knew who the other was. They met by chance in the morning of 2 December 2010 when each of them was looking for heroin. They managed to purchase heroin and the appellant Laura Stewart invited Anthony Malloy to come to the house of the deceased where they could consume the heroin.
It appears that all three spent the day in the flat of the deceased which was on the ground floor.
A number of neighbours gave evidence as to sounds that they heard coming from the flat in the course of the day and into the night. One of these, Crown witness 10 Scott Peden, said that he heard shouting from the flat around 1pm. He recognised the voices as those of the appellant Laura Stewart and the deceased. Laura Stewart sounded aggressive. Another neighbour, Crown witness 11 Sunil Chaka, heard voices raised around 8pm; he heard a female voice say 'I told you not to fucking do that'. Another voice said 'I think we should go now'. Crown witness 13, Arthur Izat lived in the corresponding flat in the next close so that he was through the wall from the flat of the deceased. He said that from time to time over a period he heard noises like thumps and bangs. He heard Laura Stewart, whose voice he recognised, shouting aggressively. Things would quieten down and start up again; these noises went on until about 11pm.
Crown witness 7 Julie McConnachie lived in a first floor flat across the road from the flat occupied by the deceased. About midnight she looked out of her window and in the common close leading to the deceased's flat she saw two persons kicking and punching another person who was lying on the floor. She telephoned 999 and described what she was seeing. As a result, police officers attended at the flat of the deceased.
When the police officers (Crown witnesses 30 and 31: constables Emma Love and Gordon Higson) arrived they found the two accused in the flat and lying on the floor in the hallway was the deceased who was badly injured. There was a lot of blood on the floor in the living room. More police officers attended and the appellant, who was very excitable and agitated, gave a false account about the deceased having been assaulted by a group in the street and that she and Mr Malloy had helped him home.
The deceased was taken by ambulance to the Victoria Infirmary, where on arrival at around 1am, he was still conscious with a Glasgow Coma Score (GCS) of 11 out of 15. He was noted to have a considerable number of injuries to his face and head. Fairly quickly his level of consciousness deteriorated and by about 2:30am the GCS was 3 out of 15. A CT scan of his head revealed a large right sided subdural haemorrhage with midline shift while a chest x‑ray revealed a number of fractured ribs on the right side. He was taken into intensive care and attached to a ventilator to assist breathing. His condition never improved and in the evening of 4 December, after discussion with the family, the life support system was disconnected and he was pronounced dead."
The cause of death
 Seventeen injuries were found on post‑mortem. None was a bleeding injury. The pathologist considered that the extensive bloodstains found on the livingroom floor were caused by a nosebleed. There was bruising to the scalp, chest and face, with some bruises having a faint linear pattern suggestive of the imprint of footwear, and thus stamping. There were fractures of the left cheekbone and larynx, and fractured ribs. The cause of death was certified as a head injury (subdural haemorrhage) due to blunt force trauma to the head and face. It was not possible to identify the fatal blow.
Forensic evidence about bloodstains
 The forensic scientist identified three types of bloodstain on the clothing of the appellant and the co-accused:
1. Contact bloodstains, produced when an object wet with blood touched another surface.
2. Blood spots transmitted aerially.
3. Impact spatter, caused when a blow or impact into wet blood produced a pattern of small spots.
 Details of the distribution of blood on the clothing of the appellant and the co‑accused are set out in the judge's report as follows:
"On the clothing of both accused there was blood staining which matched the DNA profile of Martin Vaughan.
On the shirt worn by the co‑accused Malloy there was heavy contact blood staining, some of which was clotted, ... on the front, the lower back and on both sleeves. The presence of clotted blood indicated that the deceased had been assaulted earlier and that the co‑accused had continued to assault at a later time when the deceased was bleeding.
Small blood spots typical of impact spatter were noted on the mid‑front of the shirt and on the mid‑front on the t‑shirt worn below the vest. There were blood spots on the left cuff. Contact blood staining and associated blood spots were noted on the lower right sleeve and the outside of the cuff. A few blood spots were noted on the inside of the right cuff. This pattern and distribution was very typical of that produced if the wearer had struck a bloody object with his hand.
On the jeans worn by Mr Malloy there was extensive contact blood staining on the front and back. Large downward directional blood spots and runs of blood were noted on the front of the jeans. Large blood spots are produced when blood drips passively from an object wet with blood or an open wound. There were small blood spots, typical of impact spatter, noted on the back of the right leg.
On the shoes worn by Mr Malloy there were extensive bloodstains on the inner face, outer face, upper front and heel.
On the jacket worn by Mr Malloy there was smeared contact blood staining on the lower front, back, and the left sleeve and small blood spots were noted on the lower left front, at the pocket, and on the inside left front of the jacket at the zip.
The forensic scientists concluded that the scientific findings would support an assertion that blood from Martin Vaughan had come into contact with and been aerially transferred on to the clothing of Anthony Malloy. If Anthony Malloy had been close to or involved in an assault on Martin Vaughan when he was bleeding then this would be an explanation of the findings.
On the t‑shirt worn by the appellant Laura Stewart there was contact blood staining which had been deposited while the fabric was crushed or folded, on the front, and other contact blood staining was noted on the back and the right sleeve. Small blood spots, aerially transmitted, were noted on the lower front of the t‑shirt.
On the jeans worn by the appellant there was extensive contact blood staining, some of which was heavy, on the front and back. Small blood spots were noted on the lower front of both legs and the lower back of the left leg.
On the boots worn by the appellant there was widespread heavy contact blood staining and a few small blood spots on the welt of both boots.
On the vest worn by the appellant there was contact blood staining on the lower front and back and small blood spots on the lower front and back.
There was blood spatter on the clothing of the appellant."
The judge's charge
 In his charge at pages 33 to 37, the trial judge invited the jury to consider a number of combinations of verdicts open to them. In particular, he pointed out that, depending on what they believed, they could convict both of murder; they could convict both of culpable homicide; they could acquit one and convict the other of murder or culpable homicide; they could acquit both. However as indicated above, at page 37 he directed the jury that they could not find one guilty of murder and the other guilty of culpable homicide.
Submissions: the appellant
 Senior counsel for the appellant submitted that the evidence about bloodstains laid a basis for the jury to differentiate between the appellant and the co‑accused. The jury could have drawn the inference that the person who carried out the prolonged attack was the co-accused (a former boxer). It was impossible to say which blow had been fatal, but it was a reasonable inference that the fatal injuries were inflicted by the sustained attack which, on the forensic evidence, could be laid at the door of the co-accused. For while it was conceivable that the jury might disbelieve the appellant when she said that she played no part in the attack, the Crown had not demonstrated that she had participated in the prolonged attack.
 If the jury were to reach the view that the appellant joined in the assault to some extent, the judge's directions at page 37 of his charge left the jury with no option but to convict her of murder. However the appellant should, in such circumstances, be entitled to ask the jury to consider a verdict of culpable homicide: cf Brown v HM Advocate 1993 SCCR 382; Parr v HM Advocate 1991 SCCR 180; Broadley v HM Advocate 1991 SCCR 416. While the inability to identify which blow was fatal made it more difficult to attribute different mens rea to different accused, it was conceivable that what caused the subdural haemorrhage was the persistent and repeated attack with a period of inactivity (hence the clotted blood on the co‑accused's clothes), followed by a resumption of the attack. The appellant in her evidence blamed the co‑accused for such an attack, and her evidence was supported by the forensic evidence. Thus the forensic evidence, taken with the evidence of the appellant about the type of assault perpetrated by the co-accused, would have entitled the jury to conclude that the fatal injury had been caused by a repeated and persistent attack by the co‑accused. If, on the evidence, that was a reasonable option open to the jury, they should have been told that they could convict the appellant of the lesser crime of culpable homicide while convicting the co‑accused of murder. The appeal should be allowed, the conviction of murder quashed, and a conviction of culpable homicide substituted.
Submissions: the Crown
 The advocate depute submitted that the Crown case at trial was that the appellant and her co‑accused acted in concert throughout the attack upon the deceased. The independent eye-witness Julie McConnachie saw two people kicking and punching the victim as he lay on the ground. The jury were directed to consider each accused individually, and to make such deletions as they thought fit. Nevertheless they chose to convict the appellant of the whole charge, without deletions. To suggest that a trial judge, in a situation where an accused denied all involvement, nevertheless had to scrutinise the evidence; assess which part (or parts) of the appellant's evidence he could invite the jury to reject; and thereafter direct the jury how to find corroborative evidence for what might be one interpretation of events, was inappropriate and possibly going beyond the judge's role. The forensic evidence was capable of many interpretations. For example, the trial advocate depute, when addressing the jury, suggested that the impact spatter on the rear of the co‑accused's trousers could have been caused by the appellant striking the deceased when the co‑accused had his back turned. In other words, the appellant could be inferred to have inflicted a blow on the deceased. Another possibility arose from the dilute bloodstains found on a mop handle which appeared to have been used as a weapon. The same sort of dilute bloodstains were found on the appellant's vest top, again allowing an inference that the appellant had used the mop handle as a weapon to inflict blows on the deceased. But the question was whether these possible interpretations constituted an obvious alternative arising from the evidence. The advocate depute contended that they did not. For the trial judge to indulge in such an elaborate exercise involving speculation about what the appellant's evidence could or should have been was not what was envisaged in Ferguson v HM Advocate 2009 SCCR 78 (where the obvious alternative verdict arose from a clearly-proven single stab with a knife). In the present case, the fact that there were two accused and seventeen blows, of which one or some proved fatal, enhanced the complexity and speculation involved in such an exercise, a fortiori as there was no direct evidence about what took place; how long any attack lasted; who was involved, and for what period. The Crown's approach was entirely appropriate, as were the trial judge's directions: cf Gardener & Glynn v HM Advocate 2010 SCCR 116 at paragraphs  to . The appeal should be refused.
 We accept that there may be circumstances in which assailants acting in concert ultimately cause a death, yet each participant may bear a different degree of responsibility, such that the jury is entitled to convict one of murder, and another of culpable homicide: cf Docherty v HM Advocate 2003 SCCR 772. Each case depends on its facts: Broadley v HM Advocate 1991 SCCR 416.
 The only issue in this appeal is whether, on the evidence, the trial judge erred in directing the jury as noted in paragraph  above, thus (it is said) depriving the jury of an opportunity of convicting the appellant of culpable homicide while convicting the co‑accused of murder.
 In the particular circumstances of this case, we are not persuaded that the trial judge erred. The Crown case was wholly dependent upon concert, as it could not be proved beyond reasonable doubt who struck the fatal blow. While accepting that the forensic evidence about bloodstains could be consistent with a number of possible alternative explanations, these alternatives were, in our opinion, too numerous and too speculative to qualify as an "obvious alternative verdict reasonably available on the evidence" as a result of which the trial judge was obliged to direct the jury on culpable homicide in terms of Ferguson v HM Advocate 2009 SCCR 78 paragraph ; cf Gardener & Glynn v HM Advocate 2010 SCCR 116 at paragraphs  to . In the present case, the appellant stated categorically in her evidence that she had not assaulted the deceased. She had been too frightened to escape or to summon help. Her only physical contact with the deceased had arisen from attempts to intervene and to prevent further attacks. The aerial bloodstaining on her clothing came about because she had been in the vicinity when the co-accused was attacking the deceased. The contact bloodstains occurred when she cradled the deceased in the hallway just before the police arrived. On the basis of that defence case, the trial judge was in our view not obliged to scrutinise the evidence (including the forensic evidence relating to bloodstains) to try to identify further feasible alternative defence explanations consistent with that evidence but inconsistent with the appellant's own explanation, one such explanation being the appellant's minor involvement in an attack upon the deceased such that the jury would be entitled to convict her of culpable homicide, rather than choosing between murder or an acquittal. For the trial judge to pursue that path would, in our view, be to trespass upon the function of the jury: cf Gardener & Glynn, cit sup, paragraphs  to . Indeed in this particular case, to do so might involve a degree of speculation, as there were two accused and it was impossible to identify which of a series of blows over a prolonged period was the fatal blow. This combination of circumstances presented a considerable number of interpretations of the forensic (and other) evidence, but no "obvious alternative verdict reasonably available on the evidence" such as existed in Ferguson v HM Advocate, cit sup. The scenario presented by defence counsel, although no doubt a possible one, is not in our opinion such a clear and realistic alternative as to impose an obligation upon the trial judge to give the jury a direction about the option of convicting one accused of murder, and the other of culpable homicide.
 Thus if, as the appellant maintained, the evidence established (or raised a reasonable doubt) that she was an innocent party, possibly affected by drink or drugs, forced to be a reluctant and intimidated witness to a series of assaults perpetrated upon the deceased by her co‑accused over a prolonged period, and unable to escape or to summon help, the appropriate verdict for her would be one of acquittal. If, on the other hand, the jury were satisfied beyond reasonable doubt that the appellant had acted in concert with the co-accused - in other words, if the Crown had proved that she had actively associated herself with a common criminal purpose which carried the obvious risk that human life would be taken (McKinnon v HM Advocate 2003 SCCR 224), the proper verdict in respect of both the appellant and her co‑accused would in our opinion be murder, without any differentiation between the two in the context of degrees of responsibility: contrast with the circumstances in Docherty v HM Advocate 2003 SCCR 772.
 In the result, in the circumstances of this particular case, the trial judge's directions were, in our opinion, entirely correct. The appeal is refused.