APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Reed Lord Carloway Lord Mackay of Drumadoon Lord Nimmo Smith	[2012] HCJAC 14 Appeal No: XC408/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in REFERENCE by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of WILLIAM LEWIS GAGE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Scott, Q.C., Moll; Aamer Anwar & Co., Glasgow

Respondent: Mitchell, Q.C., A.D.; Crown Agent

27 January 2012

Introduction

[1] On 9 February 2004 the appellant was convicted after trial in the High Court at Glasgow of the murder on 7 March 2002 of Justin John McAlroy outside the latter's home in Cambuslang. There was no doubt that the killer had murdered the deceased. The issue at trial was whether it had been proved beyond reasonable doubt that the appellant was the killer. The jury's verdict of guilty of murder was by a majority. He was acquitted of a second charge of attempting to pervert the course of justice by seeking to destroy evidence.

[2] The appellant was sentenced to life imprisonment with a punishment part of twenty years. He sought and obtained leave to appeal against conviction. In that appeal he relied, as a ground of appeal, on section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 - that there had been a miscarriage of justice based on "the jury's having returned a verdict which no reasonable jury, properly directed, could have returned". His appeal was refused (Gage v HM Advocate [2006] HCJAC 7). The Scottish Criminal Cases Review Commission has subsequently referred his case to the court. The appellant has taken the opportunity of that referral to table several grounds of appeal against conviction. These include a reiteration of the contention advanced in the previous appeal that there has been a miscarriage of justice based on section 106(3)(b). In that context the appeal was directed to be heard by five judges.

Ground 1 - section 106(3)(b)

[3] Although there was some direct evidence (to which we shall return) of visual identification by resemblance of the appellant as the killer, the Crown's case against the appellant was largely circumstantial. At the hearing of the previous appeal the Advocate depute identified nine factual propositions which he described as undisputed evidence available to the jury. Before us it was not suggested that these propositions were not duly supported by the evidence. These propositions are:

"1. The deceased was a man with contacts and enemies in the criminal world.

2. At about 10.00pm on 7 March 2002 he was shot and fatally injured in the street close to his home at 29 Acacia Way, Cambuslang. He died in the early hours of 8 March 2002.

3. The killer discharged six shots from a handgun. Five struck the deceased in the arm, leg, chest, and head.

4. The killer's facial features were partially obscured by a scarf, hood or some other garment. He was otherwise wearing dark clothing, which included a jacket.

5. The killer left Acacia Way on foot, and ran along a pathway to Newton Station Road where he entered the passenger seat of a waiting white getaway car in which there was already a driver. The car drove off in the direction of the M73/M74 motorway, which could lead to Easterhouse.

6. At 10.49pm on 7 March 2002 a white Saab motorcar was reported to the police as having being abandoned and set alight on the embankment at Balcurvie Road, Easterhouse. The car had been noticed (as abandoned and apparently set on fire) at least ten minutes before the telephone call to the police.

7. Various items abandoned in the motor vehicle included gloves (labels 9 and 10) found in the front passenger footwell; a black nylon cagoule or jacket with a hood (label 3), found on the rear seat behind the driver's seat; a pair of dark waterproof trousers (label 4) found on the same seat; a dark grey woollen scarf or snood (label 5) found on the rear seat behind the driver's seat; a Yazoo brand drinks bottle (label 8) in the rear footwell; a radio scanner (label 37) found on the rear seat: the scanner was switched on, operating and tuned to the police wavelength, thus enabling police communications to be listened to.

8. At 10.32pm on 7 March 2002 a telephone call was made from mobile phone number 07958173538. At the time of the call, the caller was in the vicinity of the cell-site on Easterhouse Road, close to junctions 8 and 9 on the M8 motorway.

9. Between December 2001 and 7 March 2002 there were no other reports made to the police about incidents concerning the discharge of a firearm which had any association with a white car."

[4] There was also available to the jury scientific evidence (relating to the finding and analysis of DNA and to firearms discharge residues), evidence about calls made by use of mobile telephone number 07958173538 and a tape recording of an interview which the appellant had had with the police following his detention on 3 May 2002.

[5] The first scientific report (production No.25) disclosed that the DNA profile from the swab taken from the neck of the Yazoo drinks bottle matched the appellant's DNA profile to a probability in the order of one in a billion males (pages 5, 6 and 18 of the report). The DNA profiles from tapings taken from the gloves and the snood matched the appellant's DNA profile to a probability in the order of one in a billion males, subject to additional traces of DNA from at least two unknown individuals (pages 6 and 18 of the report). A taping from the hood and inner cuffs of the jacket revealed a DNA profile consistent with a mixture of the DNA of the appellant and the DNA of a female forensic scientist involved in the testing procedure (pages 6, 7 and 19 of the report). When the profile of the scientist was subtracted, the remaining DNA profile matched the appellant's DNA profile to a probability in the order of one in a billion males. The only relevant DNA identified on the jacket was that of the appellant.

[6] The second scientific report (production No. 27) recorded that percussion primer firearm discharge residues were recovered from the jacket on which the appellant's DNA had been identified and the snood on which the appellant's DNA (and traces of the DNA of two other individuals) had been identified (page 5 of the report). Those findings indicated that "(i) these items of clothing [had] had a close association with a gun when discharged, and/or (ii) these items of clothing had been in contact with a source of percussion primer firearm discharge residue e.g. a gun that had been discharged or a spent cartridge case" (page 6 of the report). The report included the following conclusion:

"The percussion primer firearm discharge residues recovered from the jacket worn by the deceased and the cartridge case described previously were each found to be of a similar type to the residues recovered from the snood and the jacket located in the Saab vehicle with Reg. No. F36 WCS, referred to in a previous report dated 7 May 2002. This is a common type of primer."

The cartridge case referred to had been recovered from the location of the shooting.

[7] As regards the telephone, the evidence disclosed, as previously narrated, that a telephone call from the mobile phone number 07958173538 was made at 10.32pm when the caller was in the vicinity of the cell-site on Easterhouse Road close to junctions 8 and 9 on the M8 motorway. It was agreed by joint minute that the mobile telephone number was registered to a person called Ann Finnegan, a near neighbour of the appellant's mother in Easterhouse, who had never in fact owned or used such a phone (trial judge's original report page 9). When the phone was examined, it was found that "(a) some 26 out of the 40 numbers called over the period [between 1 February and 8 March 2002] matched numbers noted in Filofaxes seized by the police on a search of the house in Byers Road [Glasgow] where [the appellant] lived; and (b) 3 more belonged to individuals well known to [the appellant]" (trial judge's original report page 9). The trial Advocate depute's speech to the jury (transcript page 27) refers to evidence that shortly after the call at 10.32pm, calls were being made to numbers which were in the appellant's diary and indeed that a call was made an hour afterwards to Margaret Welsh, his partner. There was, however, no direct evidence that the appellant was the normal user of the mobile phone from which a call was made at 10.32pm on the night in question, nor was there any direct evidence to show whether he, or someone else, had possession of the phone at the material time.

[8] At interview by the police the appellant positively asserted that he did not know why he had been detained, that he had nothing to do with the death of Justin McAlroy, and that he had not been there when the latter was killed. As regards his whereabouts at the material time, he would only say that if it ever came to trial he would tell the jury where he was and who he was with. In addition, the appellant positively affirmed inter alia that he had no address in Byers Road; that he owned no mobile phone; that he bought and sold low-value second-hand cars; that the Saab found at Easterhouse had nothing to do with him; that the gloves, snood, jacket, trousers and drinks bottle found in that vehicle were not his and had never been worn or handled by him; and that he had not fired any gun, or been present when a gun was fired by anyone else, since being in the Territorial Army some thirteen years earlier. Against that background, the appellant expressed incredulity when advised that his DNA had been found on four of the items concerned and firearm discharge residues on two of them.

[9] The appellant did not give evidence at his trial. There was no other evidence as to how the appellant's DNA might have come to be on the items recovered from the white Saab.

[10] Three additional strands of evidence were relied on by the Crown at trial: (1) evidence linking the Saab found in Easterhouse with a white getaway car seen in Newton Station Road, (2) evidence linking the clothing found in the Saab with the clothing observed to be worn by the killer in Acacia Way and (3) evidence linking the appellant, on a part-facial resemblance basis, with the killer. These strands will be examined in more detail in due course.

[11] At his trial the appellant was represented by an experienced solicitor advocate. No submission was made under section 97 of the 1995 Act that the appellant had no case to answer. Nor was it suggested, either at the previous appeal hearing or before us, that there was insufficient evidence in law to allow the case to be considered by the jury.

[12] The trial ran from 22 January to 9 February 2004. Unsurprisingly the trial Advocate depute led the evidence for the Crown broadly in chronological order, beginning with the third of the three strands referred to (which essentially came from the deceased's widow, Tracy McAlroy) and proceeding through various stages to the police and scientific evidence. He adopted a similar chronological approach in his address to the jury. In charging the jury the trial judge, who dealt in some detail with the evidence, adopted in that regard a broadly similar chronological approach. But, as he correctly directed them, they were entitled to approach the evidence, subject to his directions in law, in such a way as they found useful. It would be unsurprising if, having considered and rejected the appellant's special defence of alibi (which they did), they first addressed the significance of the scientific evidence linking the appellant with the items found in the Saab. Miss Scott for the appellant, while acknowledging the existence of the "Easterhouse evidence", was at pains to concentrate on the three strands of evidence referred to - and on the qualitative deficiencies in them. That was no doubt forensically apt; but it gives insufficient weight to the likelihood that the jury would not first have concentrated on these strands.

[13] Consideration of the "Easterhouse evidence" would have entitled the jury to come to a number of initial conclusions. First, that the Saab had been set alight in an attempt to destroy evidence of recent criminal activity - if evidence was to be destroyed, it would from the perpetrators' point of view be desirable to do so quickly. Secondly, that that activity had involved the use of a firearm or firearms. Thirdly, that the appellant had been in contact with the gloves, the snood and the jacket, all items which it had been sought to destroy by fire. Fourthly, that the gloves were found in the well of the passenger seat, the seat into which the killer had gone in the getaway car in Newton Station Road. Fifthly, that firearm discharge residues found on the snood and the jacket in the Saab were of a similar, albeit a common, type to the residues found on items at the location of the shooting. Sixthly, that the criminal or criminals who had been in the Saab had recently been seeking to monitor, via a radio scanner, local police activity - presumably to ascertain what the police were currently doing, which might include what they were currently doing about recent criminal activity.

[14] In that connection the jury also knew from other evidence led before them that, apart from the shooting in Acacia Way, there was no other reported incident in recent months of the discharge of a firearm in association with a white car. They would also know that the fire-damaged Saab found in Easterhouse could in the time available have travelled there from Newton Station Road after the shooting. There was evidence that to travel by car from Newton Station Road to Balcurvie Road in Easterhouse by a direct route might take about fifteen minutes. However, no white vehicle had been recorded on CCTV cameras on the direct route. It would be unsurprising if those escaping from the scene of a shooting and intent on destroying the evidence elsewhere had decided to take an indirect route which avoided CCTV cameras. The shooting took place in Acacia Way at about 10.00pm. The telephone call which first alerted the police to the abandoned Saab was made at 22.49 hours by a Catherine Bailley. But she had been informed about the matter by another witness (Frank McSwiggan, who at some earlier point had observed the car) and the two had conferred for about ten minutes as to what they should do before the police were phoned. The jury would have been entitled to conclude that the Saab had been abandoned at about 22.30, a time wholly consistent with having travelled to Balcurvie Road by an indirect route from Newton Station Road shortly after the killing. On the basis of the telephone evidence the jury would have been entitled to infer that, despite the absence of direct evidence of the appellant's use of number 07958173538, he had in fact used it in the Easterhouse area at 10.32 that evening.

[15] That evidence, without the need to rely on the three additional strands of evidence referred to above, was not only sufficient in law to warrant consideration by the jury but cogent circumstantial evidence of the appellant's close association with the killing in Acacia Way.

[16] For a period in 2002, including 7 March, Charles Bowman was working at nights as a security man at a development site in the immediate vicinity of Newton Station Road. He was housed in a Portakabin there. At about 10.00pm on 7 March, as he was about to set off on a regular inspection round, he heard the sound of a car's tyres screeching as it accelerated away from a starting position on Newton Station Road. Mr Bowman saw the passenger's door being pulled closed as the car travelled towards where he was watching through a Portakabin window. In evidence he described that car as "white and quite big". When asked whether he knew what make of car it was, he responded: "I don't know, I'm not very good with cars." He thought it was a car with a boot (as distinct from a hatchback). The witness was then taken through a history of steps taken in the course of the police investigation to assist him with his description of the vehicle. He had initially thought "it was maybe like a Volvo type". The police had taken him to look at Volvo cars, but all he had been able to say was that they were similar to what he had seen; he could not say that they were definitely the same. En route to that location he had pointed out a Volvo 440, which in a statement he had said was "the same car as I saw on Thursday night". He was subsequently (on 13 March 2002) taken to Paisley Police Station where he was shown the white Saab which had been found at Balcurvie Drive (whose registration number was F36 WCS). He then gave to the police a statement which included: "On looking at the white Saab I can say that it is similar to the car I said was a Volvo although I cannot state it is the car." He also stated: "The white Saab is similar in shape, colour, the amount of doors and the same size."; and "I'm not very good with cars but the white Saab I were [sic] shown is definitely similar to the car I saw last Thursday night" and accepted in evidence that all these statements were true.

[17] It emerged in the course of cross-examination that the witness had given a number of statements to the police. In an earlier statement he had said: "I saw the car was a Volvo, white colour with a white spoiler on the back, I now know the type, it was a 440." He had also stated that the car in question had no lights on. At Paisley Police Station he had not been shown a line-up of cars from which to make an identification; he had been shown only one car (the Saab). We shall have to return, under a separate ground of appeal, to consider whether the procedure followed by the police (which led to the witness's statement that the white Saab shown to him was similar in shape, colour and the number of doors to the car as seen by him in Newton Station Road and was the same size) led, or materially contributed, to the appellant's trial being unfair. But for present purposes that testimony was available to the jury as a link, albeit not one of positive identification, between the getaway car (which sped off with tyres screeching and the passenger's door not securely shut) and the Saab found in Easterhouse.

[18] Two other witnesses, Stephen Madden and Agnes Edgar, who were together in a car travelling on Newton Station Road at about 10.00pm on 7 March, noticed a white car parked there with someone in the driver's seat. As their car was passing that stationary car Mr Madden, according to his testimony, saw a figure run down a gravel path (which led from the housing estate which contained Acacia Way) on to the pavement of Newton Station Road and enter the front passenger seat of the stationary car. It then drove off. The passenger, when first seen, had his face, according to the witness, covered by a dark or black ski mask. Miss Edgar, who was at the time of the killing 15 years of age, according to her testimony, also saw a man running from the direction of Acacia Way and open the door of a white car, with a bonnet and a boot, then stationary in Newton Station Road. While accepting that she had been travelling by car on that road at the relevant time, she claimed initially to have no recollection of anything of significance observed on that journey. She was taken through two lengthy police statements, parts of which she accepted to be true, other parts of which she denied to be true or claimed not to remember. She was clearly aggrieved by her treatment at the hands of the police; she appeared to harbour the belief that at one stage in their investigations the police had accused her of being involved in some way in the killing of the deceased, with whom she was acquainted. She accepted that the man she saw was about 6 feet in height. She stated that the upper outer garment worn by the man was dark and padded and that his trousers were dark.

[19] Mr Madden was also a reluctant witness. He appeared to have a concern for the safety of his family. He had to be taken by the Advocate depute to two statements he had given to the police, one on 13 March and the other on 27 March 2002. He stated that about 10.00pm on 7 March he had been driving in the company of Agnes Edgar on Newton Station Road. He accepted that he had seen a white car parked on that road, with a number plate starting J86 or J68, as he remembered. There was a figure in the driver's seat. Just after he had passed the white car he saw a figure running down a path from the direction of Acacia Way. The descriptions of this individual which he gave to the police and which he accepted in evidence to be true included: "His face was covered with a dark or black ski mask, it had two eye holes and a mouth hole"; "He was wearing a dark colour bubble anorak type jacket, by bubble I mean padded"; "It was a bluey dark navy black in colour, I think it was waist length"; "It had a zip up the front, I didn't see any other colours or logos on the jacket". It was, he testified, a plain jacket. He accepted that he had next seen this individual, still wearing the ski mask, in the front passenger seat of the white car. Shortly thereafter he saw in his rear mirror the passenger in the white car remove the mask. He saw a white face. This person had a "ball [or round] face, maybe a bit of a chubby face and a rounded head"; "His hair was short, he had a full head of hair and was dark black, possibly brown". Later in his police statement he gave descriptions, which he accepted in evidence to be true, of the passenger in the white car. These were:

"The guy with the ski mask first I would say the guy was between 5'8" and 5'11", just above average build, about 12 to 13 stones in weight, I said he had a bit of a ball face, rounded head, dark hair"; "Nothing about his features stood out"; "He was wearing a dark navy blue, maybe black ski mask, it looked like a proper ski mask with two eyeballs and a mouth hole"; "A dark, again may be blue maybe black, waist-length padded jacket, a zip up front, I couldn't tell if the zipper was a different colour, I could just tell there was a line down the front of the jacket which looked like a zipper."; "I couldn't see if it had a collar, I've no idea what he was wearing on the bottom half of his body, I think it would have been dark because, if it was light, I would have noticed."; "I said his hair was short but longer than a crew cut, may be an inch of hair all round, he is between 25-30 years of age."

He described the make of the white car as "either a Metro or a Maestro". He said he had seen the same vehicle earlier that evening and had noticed that it had rust on the passenger side wing and door. He was shown Crown Label 3, the jacket recovered from the white Saab, but testified that it did not bear any similarity to what the described individual was wearing that night. He said he did not recognise anyone in court as that individual.

[20] Mr Madden and Miss Edgar must both have been difficult witnesses for the jury to assess. Each of them was warned, outwith the presence of the jury, of the risks of prevarication. It would have been manifest to the jury that neither gave evidence freely. Each made it plain that he or she did not wish to be involved in the investigation of this murder. Despite their plain reluctance to testify, the jury would have been entitled to conclude that they had each seen the killer running from the scene of the crime and entering the passenger seat of a white car waiting for him in Newton Station Road. He was observed to be wearing dark clothing. The upper body garment recovered from the Saab was a waist-length black nylon cagoule or jacket with a hood. The trousers recovered from there were also dark. That cagoule or jacket was not padded in the sense of having discrete quantities of insulating material sewn into the fabric but it had a large front pocket which, if filled, might have given the impression of a padded garment. Stephen Madden noticed that the man he observed had one of his arms across his chest, which would be consistent with his holding something securely in a front pocket. The weapon used in the killing was not found. The killer was not observed by any witness to be carrying anything in his hands.

[21] There were undoubtedly discrepancies in this chapter of the evidence which the jury would have required to assess and, if possible resolve; in so far as they could not resolve them they would require in light of all the evidence to determine what, if any, evidence they accepted; they might reasonably reject some evidence precisely because it was inconsistent with other evidence which in the whole circumstances they had decided to accept (King v HM Advocate 1999 JC 226 at p 238D). These discrepancies included the make of the car spoken to by Stephen Madden, though his observation that it had rust on it may have been significant; the registration number of the Saab indicated that in 2002 it was significantly more than ten years old. (Another witness (James Kearns) described a white vehicle parked at the material time on Newton Station Road as "old" and with an E or F registration number, although he was convinced it was not a Saab.) The registration number -36 --- might readily have been misread as -86 ---. The jury would have been able to find some, albeit limited, support in the evidence of these witnesses for a connection between the vehicle and the clothing of the person they saw in Newton Station Road and the Saab and its contents found at Balcurvie Road, Easterhouse.

[22] The clothing worn by the killer was also observed by several other witnesses, including Tracy McAlroy. She was in her home in Acacia Way when, at about 10.00pm, she was alerted by two or three very loud noises, like a car back-firing, coming from the front of her house. She went to investigate. She saw a man under a street lamp running away. (There was some uncertainty as to whether, as she testified, she had opened the front door and looked out or, as she had apparently told the police, she had made her observation through a clear glass panel in the door). He was wearing dark-coloured clothing, the upper garment having a sheen off it. He had something over his head. He looked at Mrs McAlroy as he ran in the direction of Newton Station Road. Only from his forehead down to the bottom of his nose was visible. The lower part of his face was covered, as if by a scarf. On 12 May 2002 Mrs McAlroy was taken to Aikenhead Road Police Station where she was shown a mannequin dressed in the clothing recovered from the Saab. (We shall require in due course to return to the significance of this procedure in relation to the question whether the appellant had a fair trial.) In evidence she said that she recognised the clothing on the mannequin as the clothing worn by the man she had seen under the street lamp on 7 March. In cross-examination she accepted that she had told the police that the jacket the man was wearing was padded with a large bulky hood like an anorak and was waist-length, possibly longer. The hood projected from the head. It was not a parka.

[23] Two neighbours of Mrs McAlroy in Acacia Way - Mrs Phylis Craig and Mrs Julia Waugh - gave evidence at the trial. Mrs Craig, having been alerted at about 10.00pm by a series of loud noises, looked out of her window. She saw at a distance the back of an individual wearing a dark jacket with a hood and striding briskly away. "He was slim to average build and about 5'91/2"", according to a police statement which she accepted to be true. The jacket appeared to be a pull-over type. A dark-coloured scarf or other material appeared to be around his mouth. The jacket was shiny, the bottom of it folded and sitting round the waist. The jacket (label 3) recovered from the Saab was shown to her by the police; she had said it resembled the jacket she had seen the individual wearing. Label 3 was the same sort of pull-over jacket that she had thought the individual had been wearing, though she was unable to identify it as being the jacket. It was not shiny.

[24] Very shortly after 10.00pm on 7 March Mrs Waugh was in her bedroom on the upper floor of her house in Acacia Way when she heard the sound of several gun shots in succession from the street. She looked out and down and saw a man running towards Newton Station Road. The visibility was not very good. The man was wearing a dark sort of woollen tammy with a dark scarf or the like across his mouth. Over the upper part of his body he was wearing a sort of khaki coloured jacket - dark beige, almost green. It was possibly a padded jacket, like a winter jacket. He was also wearing possibly dark jogging pants or dark jeans - the witness was unsure. The witness had assisted a police artist to prepare certain sketches to illustrate her recollection of the jacket she had seen. According to the trial judge's original report these sketches showed a jacket "wholly different in design, bulk and colour from Crown Label No.3".

[25] There was no real dispute at the trial that each of Mrs McAlroy, Mrs Craig and Mrs Waugh had seen the killer. The best view of him appears to have been had by Mrs McAlroy who had a view of part of his face; Mrs Craig saw his back, while Mrs Waugh looked down on him from above. They were broadly consistent in saying that the outer clothing worn by him was dark in colour, as was the clothing recovered from the Saab. There was some item of clothing round the lower part of his face - the anorak or cagoule recovered from the Saab had an integral feature to cover and protect the lowest part of the face. His head was covered; the anorak or cagoule had an integral head covering. Mrs Craig's description of the upper body garment as a "pull-over" style was consistent with the anorak or cagoule. That recovered item was not, however, "padded" - at least when the front pocket was not filled. It may, when observed by these witnesses, have been filled. However that may be, such discrepancies as there may have been in the evidence about clothing were for the jury to assess and resolve. It could not be said that it was unreasonable to conclude that the man seen by these three witnesses could well have been wearing the outer garments later recovered from the Saab.

[26] There was also direct evidence tending towards the identification of the appellant as the killer. Mrs McAlroy so identified him, on a resemblance basis, in court. No evidence was adduced that she had previously identified him at an identification parade or otherwise. No objection was taken, on the ground of unfairness, to her making a "dock identification". We shall require to return in due course more fully to the background to Mrs McAlroy's court resemblance identification but it was there for the jury's consideration. Of course, Mrs McAlroy had only a fleeting view of part of the killer's face. He was previously unknown to her. She pointed him out "because I'll never forget the eyes". On being asked how sure she could be of the resemblance, she responded: "It's just I'm not 100% sure, I've got a vision, I've got a picture of his eyes". She described them as "scary eyes". This evidence was of a nature which called for careful directions in the judge's charge - to which we shall return - but, treated with due caution and in the context of the rest of the evidence, was an additional strand of evidence upon which the jury was entitled to rely. We should add at this point that the jury was aware from Mrs McAlroy's further examination-in-chief that, in the course of their enquiries, the police had shown to her a mannequin dressed in the clothing recovered from the Saab and that she had been upset by that experience. The significance of this "show" on her court identification was available for cross-examination and comment.

[27] The appellant did not give evidence on his own behalf, though the terms of his prior police interview, which was largely exculpatory, were adduced before the jury. He led evidence from various witnesses, including evidence in support of his special defence of alibi. Ann Ross testified that she had been in his company during the material part of the evening of 7 March. They had driven to various places west of Glasgow, eventually going to a public house in the west end of that city. He had remained in her company until about 11.00pm. Her credibility was challenged in cross-examination. It follows from the jury's guilty verdict that they did not believe this witness's account and that it did not give them reasonable doubt as to the appellant's guilt. The defence also relied on the circumstance that the man spoken of by Stephen Madden as entering the passenger seat of the white car in Newton Station Road had a quite different facial appearance to that of the appellant and was not in court. That evidence the jury must also have rejected.

[28] The trial judge divided his charge into three chapters: general directions applicable to all trials, directions on the two charges then before the jury and directions designed to help the jury in relation to the application of the two earlier chapters to the particular circumstances of the case. He described the third chapter as a "limited exercise": "All I really want to do is to help you to identify the principal issues which you may wish to consider when reaching your verdict, and in addition, to give you certain further directions in law which I think are important in that context." He emphasised that it was up to the jury to decide how to go about assessing the witnesses' evidence in the case and suggested that "one way of approaching this task would be to look individually at each of the principal factors relied on by the Crown to see which of them if any you accept as credible and reliable; and then after that you might go on to consider whether you think the essential requirement of corroboration has been met." That suggestion was, clearly and rightly, non-prescriptive so far as the jury's approach to the evidence was concerned. The jury were entitled, as was accepted before us, to approach the evidence in the way they found most helpful. The trial judge's subsequent directions in relation to the "principal factors relied on by the Crown" have to be seen in that context. In particular, his direction that there would be no proper corroboration (of Mrs McAlroy's resemblance identification) "if it is the wrong car" (that is if the Saab was excluded as being the white car seen in Newton Station Road) "and the wrong jacket" (that is, if label 3 was excluded as being the upper body garment which the killer was observed to have been wearing) has to be seen in the context of the trial judge assisting the jury in the event that they approach the case in the way which he had suggested - an approach, which he had made clear to them, they were not bound to take. Miss Scott for the appellant, while recognising that the "Easterhouse evidence" was available for the jury's consideration, spent much of her submissions on this part of the case in criticising the evidence in support of the three other strands, namely, the identification of the Saab as the getaway car, the identification of the clothing in the car as that worn by the killer and the resemblance identification (by Mrs McAlroy) of the appellant as the person leaving the scene. Qualitative criticisms can undoubtedly be made of the evidence in each of these strands but, when the evidence is looked at as a whole, the case against the appellant was, in our view, compelling.

[29] A number of authorities were cited to us in which section 106(3)(b) of the 1995 Act had been considered. These included King v HM Advocate, AJE v HM Advocate 2002 JC 215 and Jenkins v HM Advocate 2011 SCCR 575. In King at page 228 it was emphasised that the relative test is objective: "... the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them". Reference is made in King to a number of Commonwealth cases, including cases from Canada. In AJE Lord McCluskey at para [30] quoted a passage from the report of the Sutherland Committee (whose recommendations led to the enactment of what is now section 106(3)(b)) in which it was stated:

"There could well be exceptional cases where, even allowing for the advantages enjoyed by the jury, it would be difficult to understand how any reasonable jury could not have entertained at least a reasonable doubt."

At para [35] and following Lord McCluskey founded his decision upon the special factor in that case of the particular difficulties in accepting the evidence of the younger complainer, whose evidence, given the Crown's reliance on the Moorov doctrine, was critical to both charges. The Lord Justice Clerk at para [30] observed that it was an oversimplification to say that in applying the subsection the court was substituting its own view on the question of reasonable doubt for that of the jury. He added:

"The court has to make a judgment on the evidence that the jury heard and assess the reasonableness of the verdict with the benefit of its collective knowledge and experience."

At para [34] he added, with reference to the case in hand:

"One does not need to have seen and heard the complainers in this case in order to appreciate the significance of the inconsistencies and contradictions in their evidence and in their statements at interview, particularly when these are looked at against the wider background of the case."

It is evident that the decision of the majority that the ground of appeal based on section 106(3)(b) was made out turned very much upon the peculiar circumstances of that case, which turned crucially on evidence as to sexual matters given by two children who at the time of the alleged offences were, as the Lord Justice Clerk put it at para [1] "still in infancy" - in fact they were between 3 and 5 years of age. The case was on any view exceptional. It was not, in contrast to the present case, essentially circumstantial in nature requiring an evaluation of a wide range of evidential factors of varying degrees of cogency.

[30] In Jenkins the jury were, rightly in the circumstances, directed by the trial judge that they could not convict the appellant of certain charges unless they were satisfied of a particular witness's visual identification of the appellant as the assailant. Of particular importance was "the history of the witness's journey towards making the dock identification" (para [46]). That included the circumstances of the incident itself and the "formidable difficulties" presented by the witness's reactions at an identification parade (where he picked out a stand-in with a 100% confidence) and at a subsequent VIPER parade where he again failed to identify the appellant, taken with the suggestive circumstances in which he had first associated the appellant with the crimes. Had the present case turned crucially on the resemblance identification of the appellant by Mrs McAlroy, there might well have been a close parallel between this case and Jenkins; but Mrs McAlroy's resemblance identification was only one among many evidential elements which linked the appellant with the murder. In these circumstances it is readily distinguishable.

[31] In Jenkins the court described as highly illuminating the judgment of the Supreme Court of Canada in R v Biniaris [2000] 1 SCR 381. The judgment of Arbour J is indeed illuminating - in particular the observation at para [40] that the assessment by the reviewing court requires not merely asking whether the jurors properly instructed, and acting judicially, could reasonably have come to the same result "but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction". Although the wording of section 686(1)(a)(i) of the Canadian Criminal Code is not identical with section 106(3)(b) of the 1995 Act, the circumstance that Parliament has entrusted the High Court with a power to review the jury's verdict on this ground implies that "the lens of judicial experience" is being invoked. However, some of the observations in the Canadian cases must be viewed with some caution - particularly where, as in The Queen v Tat 1997 Can LII 2234 (ON CA), the conviction turned exclusively on visual eyewitness identification of the alleged perpetrator.

[32] As we have sought to explain, the conviction in the present case turned on much more than the resemblance identification of Mrs McAlroy - which was of limited value and represented only a relatively minor element in the whole evidence against the appellant. Against that whole evidence, including the "Easterhouse evidence" and the two other additional strands, we are unable to say that the verdict returned by the jury was one which no reasonable jury, properly instructed, could have returned. Ground of appeal 1 accordingly fails.

Ground 3

[33] The appellant also contends that, in breach of his rights under Article 6 of the Convention of Human Rights, his trial was unfair. The main thrust of this contention was directed towards the circumstances in which Mrs McAlroy was allowed to make in court the resemblance identification of the eyes of the appellant as similar to those of the man she had seen in Acacia Way. Mrs McAlroy did not testify that she had identified the appellant at an identification parade - and it was made clear to us, though the jury was not aware of this, that an identification parade, at which the appellant was to be paraded and which Mrs McAlroy, among others, was to have viewed, had been arranged but aborted in circumstances which we shall describe. No objection was taken at the trial to the admissibility of any visual identification in court by Mrs McAlroy. It was acknowledged before us that, as a matter of Scots law, a "dock identification" not preceded by a positive identification by the witness at an identification parade or similar procedure does not automatically render a trial unfair (Holland v HM Advocate 2005 SC (PC) 3, per Lord Hope of Craighead at para [9] and per Lord Rodger of Earlsferry at paras [41]-[42]). The law may be different in other jurisdictions - particularly those in which corroboration of eyewitness identification evidence is not essential. In Reid and Others v The Queen (29/7/1989), a Privy Council appeal from Jamaica, the Committee, having referred to the need for warnings in relation to identification, continued:

"If convictions are to be allowed upon uncorroborated identification evidence there must be strict insistence upon a judge giving a clear warning of the danger of a mistaken identification which the jury must consider before arriving at their verdict."

The issue whether the leading of, and the reliance by the Crown on, a dock identification, not preceded by a positive identification parade, renders the trial unfair will generally be for the appeal court to determine after considering all the relevant aspects of the trial (Lord Rodger at para [41]). One of the aspects will be the centrality or otherwise of the identification evidence in question to the case for the Crown. If Mrs McAlroy's resemblance identification was, as we hold it to have been, only a relatively minor element of the whole evidence against the appellant, any risk presented by dock identification not preceded by a positive identification parade to the fairness of the trial will be less significant than in some other cases. Moreover, account must, as Lord Rodger emphasised at para [42], be taken of the circumstance that the appellant was legally represented at his trial and that tactical decisions had to be taken by his legal representative. That is of particular significance here in relation to what was made of the absence of a pre-trial identification.

[34] Among the Crown productions at the trial was the report of an identification parade arranged to take place on 12 May 2002. The appellant was to be paraded. Among the witnesses to view the parade were Mrs McAlroy, Mrs Waugh, Agnes Edgar, Charles Bowman and Stephen Madden. The appellant was legally represented. The appellant, supported by his legal representative, objected to the composition of the parade on the ground that he was about ten years older than the stand-ins - as was the case, he being 31 and the stand-ins being students aged between 18 and 20. The response by the police officer in charge of the parade was to agree that the stand-ins were considerably younger but that "as masks are being used to partially cover their faces and as they are of general height/build, I do not consider it to be unfairness". The legal representative was asked to consider the position with his client who, however, was adamant that he would not participate in a parade under the arrangements as they stood. The parade was then abandoned.

[35] It is inappropriate for this court to make a judgment as to whether or not the appellant's attitude was in the circumstances reasonable. It was open to the solicitor advocate who appeared for him at the trial to object to Mrs McAlroy being asked in court any question designed to elicit any form of identification, she not having identified the appellant at any identification parade. Such a strategy involved a significant risk for the defence. If the trial judge, having heard the whole pertinent evidence (including details of the abortive parade) had repelled the objection on the ground that the line of evidence being pursued with Mrs McAlroy was not inadmissible at common law and would not, if adduced, necessarily have rendered the trial as a whole unfair, there was a real risk that the whole pertinent evidence, including the appellant's refusal to participate in the parade, would be led before the jury. They might have thought that the appellant's refusal was unreasonable - that he was merely seeking to avoid the risk that he might be identified by one or more of the witnesses. An alternative tactic was to allow Mrs McAlroy's evidence to be adduced without objection but to challenge the reliability of her resemblance identification by cross-examination and by comment in the address to the jury. There need not have been an overly robust cross-examination of Mrs McAlroy. In his address to the jury the solicitor advocate referred to the state she was in when giving evidence, describing it as "pitiful to see". A more robust cross-examination of her might simply have alienated the jury. What the solicitor advocate could do, and did in his address, was to emphasise the factors which might satisfy the jury that even her resemblance evidence, by the eyes, was unreliable. He reminded them that the witness in none of her several police statements had made reference to the individual's eyes, that much later she had been presented with a mannequin with painted or stuck-in eyes ("Were these the 'scary eyes'?", he asked) and that there was uncertainty in the evidence as to how clear a view the witness had had of the individual in the street.

[36] The trial in this case was held before the decision in Holland but the decision and reasoning in that case may, nonetheless, be instructive in deciding whether the appellant had a fair trial; and in particular, whether the safeguard constituted by the judge's directions was in the circumstances of the case adequate. Holland can readily be distinguished from the present case: in Holland the witness in question (Mrs Gilchrist) had attended a conventional identification parade and there picked out a stand-in. In Pipersburgh v The Queen [2008] UKPC 11, an appeal to the Privy Council from Belize, no identification parade had been held but five dock identifications (from three witnesses) were made at the trial. In the Committee's judgment, delivered by Lord Rodger, reference was made to Holland. In relation to the directions it was observed at para [15]:

"... a judge does not discharge his duty, to give proper directions on the special dangers of a dock identification without a prior identification at an identification parade, by giving appropriate directions on the approach to be adopted to eyewitness identification evidence in general. Though related, the issues are different and, where they both arise, the judge must address both of them."

It was held that the directions given by the trial judge were inadequate. In that case, as in Holland, the dock identification was crucial to the conviction. Both Holland and Pipersburgh were concerned with the perceived advantages of conventional identification parades - where the whole of the suspects' and the stand-ins' faces are available for view by the witness. Here the only feature of which the witness claimed to have any recognition was the eyes of the appellant - she had no recollection of his nose, albeit it was also exposed on 7 March 2002. The true issue about her resemblance evidence based on the eyes was not whether it might have been unduly influenced by the appellant's status in court as the accused but whether it might have been unduly influenced by the presentation to her of the mannequin dressed in the garments recovered from the Saab. That matter was not only highlighted in cross-examination and in his speech by the defence solicitor advocate; it was also identified in the judge's charge where, in relation to Mrs McAlroy's evidence about the killer's eyes, he posed a number of questions including:

"... could her evidence have been coloured or distorted by seeing the police mannequin or dummy with all the clothes on it later on?",

as to which he enjoined "the same kind of cautious approach". We are not persuaded that in the circumstances of this case fuller directions were required. When the accused's representative had (perhaps for good reason) made nothing of the absence of prior identification and the jury had heard no evidence about the abortive parade, it was not for the trial judge to give speculative or hypothetical directions to the jury on this matter. What he did, in addition to the passage quoted, was to pose for the jury a range of questions which they would need to ask themselves when judging of Mrs McAlroy's reliability in her resemblance identification - including from where she saw the killer, whether the street lighting did or did not give her a clear view and whether she in fact saw his eyes at all, when she had not mentioned that feature in any of her police statements. These challenging questions were in addition to the judge's general warnings about the dangers of eyewitness evidence. Moreover, her evidence was not truly identification evidence, which imports that the person is the same, not just similar (see Report of the Departmental Committee on Evidence of Identification in Criminal Cases (1976) (the "Devlin Report"), para 4.99).

[37] Much was made in submission to us of the "suggestibility" of the procedure adopted by the police in presenting to Mrs McAlroy a mannequin dressed in the garments recovered from the Saab. We are not persuaded that this exercise was unfairly suggestive. There can, in general, be no objection to a potential witness being shown items of clothing, such as a jacket or trousers, associated with a crime scene and asked whether or not such items are similar to items observed by the witness as worn by the perpetrator. Unless there was something very distinctive about the garment, it would be unlikely that the witness could go further than make a resemblance "identification" of it. If the witness had seen and described a figure overall dressed in a particular way, there was no unfairness, in our view, in showing to the witness a model, whether animate or inanimate, dressed in garments possibly associated with the crime scene, to ascertain whether the witness recognised or not the assemblage displayed. In this case if, for example, a padded or quilted character of the jacket had been a marked feature of Mrs McAlroy's recollection, she might have rejected the assemblage presented to her as being dissimilar in an important respect or at least commented on that discrepancy. She did not do so. Her reaction, which was one of being upset, was that what she was shown "just brought everything back from I'd seen [inaudible] happened to my husband". We are not persuaded that the showing of the garments, and in particular the jacket, recovered from the Saab to Mrs McAlroy in the form of their being used to dress a mannequin, followed by Mrs McAlroy's identification of these items in court as those worn by her husband's killer, rendered the appellant's trial unfair - or materially contributed to any such unfairness. We take into account in that regard that the trial judge directed the jury that they would have, in relation to the clothing, to go through the same questioning procedure as he had directed them on in relation to the eyes - and to exercise the same caution.

[38] The same is true of the showing of another object pre-trial - namely, of the Saab to Mr Bowman. This exercise took place at a very early stage of the investigation - when there was as yet no firm link between the Saab and the shooting. There was no requirement in these circumstances to have a "line-up" of various cars, notwithstanding that Mr Bowman had earlier expressed the opinion that the car that he had seen in Newton Station Road was a Volvo. The trial judge gave very specific directions to the jury on this matter. He said:

"What are you going to make of Charles Bowman's evidence, the security guard, who positively identified the getaway car as a Volvo 440 with a boot and a spoiler when he saw it on the way to look at Volvos with the police? And it was only after he was shown the Saab that he said 'Well, I think that is similar'. You will have to weigh that up."

That direction was in the context of a longer passage where he had posed another series of challenging questions about the identity of the car.

[39] Nor are we persuaded that a combination of these allegedly unfair factors led to the appellant having been denied his right under Article 6 to a fair trial. Ground of appeal 3 according fails.

Grounds 2 and 4
[40] The remaining grounds of appeal (2 and 4) were in effect subsumed within the arguments which we have already addressed. Ground 2, as formulated, is not easy to understand. It reads:

"ESTO there was sufficient evidence to entitle a reasonable jury to convict, absent the identification of Tracy McAlroy, the fact that this identification evidence was left to the jury and may well have formed a material basis for the conviction, when no reasonable jury could rely upon same, there has been a miscarriage of justice."

The "identification" evidence given by Mrs McAlroy was not in any respect objected to at trial and, that being so, no contention that it was inadmissible could be, or was, advanced at the hearing - 1995 Act section 118(8). We have already explained why, in our view, the verdict of the jury, whether or not they relied to a material extent on Mrs McAlroy's evidence, was not unreasonable. As to ground 3 (which is directed at the fairness of the way evidence was obtained in relation to the three strands of evidence earlier referred to and at the trial judge's directions in relation to that evidence), we have already explained why, notwithstanding there may have been difficulties with some of these strands of evidence, having regard to the trial judge's directions and otherwise, we are not persuaded that the appellant's trial was unfair.

Disposal

[41] In all the circumstances this appeal must be refused.