APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 117
Lord Justice Clerk Lady Paton Lord Drummond Young	Appeal No: XC356/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION   by   NAT GORDON FRASER   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: J Scott, QC (sol adv); Capital Defence Lawyers (for Bridge Litigation, Glasgow)

Respondent: I McSporran, AD; the Crown Agent

 

4 October 2013

Procedure

[1] On 30 May 2012, at the High Court in Edinburgh, the appellant was found guilty of the following charge:

"(1) between 26 March 1998 and 7 May 1998 ... at 2 Smith Street, New Elgin, ... Wester Hillside Farm, Mosstowie, ... Lhanbryde, and elsewhere in Scotland ... knowing that your wife Arlene Fraser, now deceased, then residing at 2 Smith Street, had consulted a solicitor with a view to divorcing you and obtaining a financial settlement from you, you while acting along with another or others ... unknown did

 

(a) between 26 March 1998 and 27 April 1998, ... at ... Wester Hillside Farm or elsewhere ..., arrange a surreptitious purchase of a motor car with a boot;

 

(c) on 27 April 1998 at ... Wester Hillside Farm, by the hands of Hector Dick, residing there, and [KR], ... purchase and secrete motor car registered number B231 PDY;

 

(d) between 28 April 1998 and 7 May 1998 ..., at ... 2 Smith Street or elsewhere ..., assault ... Arlene Fraser then residing at ... 2 Smith Street, by means to the prosecutor unknown assault her and did murder her and you did previously evince malice and ill-will towards ... Arlene Fraser."

 

The appellant had originally faced an indictment consisting of 6 charges of which the murder charge was the last. There was also a bail aggravation added to the murder charge. Charges (1) to (5) had libelled assaults on Mrs Fraser over the years 1987 to 1994. The bail aggravation narrated that the murder had been committed after the appellant had been released on bail on 24 March 1998. This related to an appearance at Elgin Sheriff Court on a charge of attempting to murder his wife on 22 March, only six weeks before the alleged murder. For reasons which remain obscure, the Crown proceeded with that charge by way of a separate indictment. This culminated in a plea of guilty to assault to severe injury and danger of life. It attracted an 18 month sentence on 1 March 2000.

[2] The present indictment cited the appellant to a preliminary hearing on 3 October 2011. This had followed authority being granted for a retrial by the Court of Criminal Appeal following the decision of the United Kingdom Supreme Court on 25 May 2011 (2011 SC (UKSC) 113) which criticised the fairness of the appellant's first trial in January 2003.

[3] On 8 February 2012, after defence submissions objecting to the competency of libelling charges (1)-(5) and stating an esto position that the inclusion of these charges was oppressive, the advocate depute was allowed to amend the indictment by deleting charges (1)-(5) and renumbering the murder charge (6) as (1). The bail aggravation was also deleted on the advocate depute's motion. The concessions thus made by the Crown, which had followed an unsuccessful plea in bar of trial based upon adverse publicity, were said to have been prompted by a desire to ensure that the focus of the jury was upon the evidence about the events immediately preceding and following the disappearance of Mrs Fraser on or about 28 April 1998 rather than anything reported in the media after that date.

[4] The appellant was sentenced to life imprisonment, with a punishment part of 17 years, backdated to 17 June 2011.

 

Circumstances
Background

[5] The appellant and the deceased were married in 1987. There were two children of the marriage. At the time of the disappearance of Mrs Fraser, the children were aged 10 and 5 years. The marriage had gone through some difficult periods and, on occasions before 1998, Mrs Fraser had consulted a solicitor about divorce, although she had not proceeded with an action.

[6] The appellant was in business with IT as a wholesale supplier of fruit and vegetables. Mr T lived in Lhanbryde with his wife. At the material time, the appellant was living with Mr and Mrs T, having separated from Mrs Fraser. The appellant was friendly with a local farmer and haulier called Hector Dick, who farmed and ran a coal merchant's business at Wester Hillside Farm, Mosstowie.

[7] Mrs Fraser had continued to live at the family home at 2 Smith Street, New Elgin, with the children. She had again consulted a solicitor. Her solicitor said that on this occasion Mrs Fraser had been serious about proceeding with a divorce. She had entered into correspondence with the appellant's solicitor with a view to ascertaining the appellant's financial position.

 

Evidence of murder
[8] Mrs Fraser was a student at a local college. She had a day off on Tuesdays and would normally be at home on that day. Thus, on Tuesday 28 April 1998, she was not at college. Both the children attended the local primary school. On 28 April, her daughter was at school as usual, while her son was away for the day at an event in Inverness. In the course of the morning of 28 April, Mrs Fraser disappeared. There has been no trace of her since then.

[9] According to family members and friends, Mrs Fraser was a caring mother. She would not have gone off without making arrangements for the care of her children. She normally kept in touch with her extended family on a regular basis. Despite being a dependable person, she failed to keep a lunch appointment with a female friend, namely MS. She failed to keep a 2.30pm appointment with her solicitor. Her personal effects were not missing from the house. She suffered from a medical condition and her essential medication was still in the house.

[10] The last sighting of Mrs Fraser was at about 8.15am on 28 April, when she was seen by a neighbour attending to the washing in her garden. Mrs Fraser had telephoned the school at 9.41am. She had spoken to the secretary about the arrangements for her son's return from Inverness. The secretary had advised her that she would make inquiries and phone back in fifteen minutes. Mrs Fraser stated that she would be available to take the call, as she expected to be in the house for the next hour. She did not answer the secretary's returned call made about fifteen minutes later or the repeated calls during the rest of the day. When MS arrived at around 11.00am, there was no trace of Mrs Fraser. The hoover was in the hall, plugged in as if it had been in recent use.

[11] Thus, it was tolerably clear that, shortly after the call to the school at 9.41am, something of a devastating nature had happened to Mrs Fraser. There was no sign of a disturbance. The Crown invited the jury to infer that Mrs Fraser must have been murdered. The jury drew that inference.

 

Evidence incriminating the appellant

[12] There were a number of circumstances which pointed to the appellant's involvement in the murder:

[13] The alibi: The appellant had an alibi for the morning of 28 April, which was not disputed. He had been making a series of deliveries to premises in Elgin, along with an assistant, GF. This was a normal activity for a Tuesday.

[14] Knowledge: The appellant knew that Tuesday was Mrs Fraser's day off and that she would be at home. He knew that she would be alone in the house in the morning, after the children had gone to school.

[15] Motive: The appellant had a motive. There was the background of marital breakdown. The parties had separated and steps were being taken by Mrs Fraser to obtain a divorce.

[16] The appellant was a jealous person. In his first statement to the police, given on 29 April, the appellant had told them about his concern about whether Mrs Fraser was seeing someone else. He described that concern as "festering in his head" and "keeping gnawing at him".

[17] Another female friend, namely MT, said that Mrs Fraser had told her that the appellant had said to her, in the context of the separation, that, if she wasn't going to be living with him, she would not be living with anyone. Mr Dick said that the appellant had said something similar to him. The appellant did not want anyone else involved in the upbringing of his children. He was concerned that, if Mrs Fraser had found someone else, this would happen. Mr Dick described the appellant as being "green-eyed" with jealousy at Mrs Fraser going out socially.

[18] Money meant a lot to the appellant. He had concerns that the financial consequences of divorce would be significant. There was a joint life policy for £100,000. The house was mortgage free. The appellant wanted the return of a Granada car, which Mrs Fraser had retained.

[19] The Ford Fiesta: On Sunday 26 April, the appellant had visited Mr Dick at his farm. He had said that he wanted a car urgently and asked Mr Dick to get one for him. KR worked in a scrap yard in Elgin. At 5.46pm on Monday, 27 April 1998, KR had received a telephone call from Mr Dick looking to source a car that night. KR bought a Ford Fiesta. He took the car out to the farm and Mr Dick put it into a shed. Mr Dick paid him £400 and gave him an additional £50 saying, "Keep quiet about the car". The car was removed by the appellant early the next morning.

[20] On Thursday, 30 April, Mr Dick went to the appellant's home at Lhanbryde. The appellant told him: "There's been a problem; the car is going back to you." He made reference to there having been "a wee bit of a scrape", which Mr Dick interpreted as meaning a "spot of bother". On Sunday, 3 May the car was returned to the farm. Inside it, on the back seat, there had been some articles of children's clothing and a dark brown woman's cardigan or coat. MS said that Mrs Fraser regularly wore a brown coat and that the coat was missing when she had checked the house for missing items.

[21] Mr Dick set the car on fire and used his digger to flatten it. He put it on to a trailer and took it to a scrap yard. Mr Dick had initially denied all knowledge of the car. He was subsequently convicted of attempting to defeat the ends of justice in relation to the car. On 1 February 2001 he was sentenced to 12 months imprisonment.

[22] Reaction: According to some witnesses, the appellant had reacted in an appropriate manner to the news of Mrs Fraser's disappearance, while, according to others, he had reacted inappropriately. Some described him as being agitated in the days following her disappearance. The evidence of Mrs S (see infra) was given in this context. The appellant did not contact the extended family of Mrs Fraser after she had been reported missing. At about 3.00am on 29 April the appellant had been visited by the police. He had shown no apparent concern about the disappearance of Mrs Fraser.

[23] Mrs Fraser's father, mother and sister all came up to Elgin. In order not to disrupt the routine of the children, the extended family had stayed at 2 Smith Street for a week. During this time the appellant had gone to the house regularly. There was tension between the extended family members and the appellant. At one point Mrs Fraser's mother had confronted him, asking whether he had had anything to do with the disappearance of her daughter. He had denied it. However, her father had also had a conversation with the appellant. The appellant had told him that the bairns "would soon forget their mother".

[24] The hidden money: The appellant told the police that he had hidden cash behind a ventilator cover in the bedroom and in a gun cabinet. Mrs Fraser's mother said that her daughter had suspected that money was hidden somewhere in the house, possibly in the gun cabinet. MS said that Mrs Fraser had told her that the appellant had money hidden in the house, but that she did not know where it was. Thus Mrs Fraser appeared not to know that there was money in the vent. When the police went to the house, the cover was loose and there was no money behind it. Either the appellant had been present in the house at some stage recently or he had told whoever had been there about the money.

[25] The rings: Three high value rings had been in the bathroom when the police had been in the house overnight on 28 April. On 29 April, a police video recording was made of the house interior, but the rings were not visible. On 7 May the rings were found on a dowel rail under a soap dish in the bathroom. None of the family members, who had been using the bathroom regularly, had noticed them there earlier in the week. The suggestion was that these valuable rings had been taken from where they had been and later replaced. The person who had done this must have had access to the house. The obvious candidate was the appellant.

[26] Taking all this circumstantial evidence together, there was sufficient evidence to allow the jury to infer that the appellant was guilty of murder. This was without the evidence of Mr Dick, who had claimed that the appellant had made a number of confessions to him to the effect that the appellant had hired a "hit-man" to carry out the murder and that Mrs Fraser had been strangled. The Crown did not rely to any great extent on these confessions.

 

Evidence relative to the ground of appeal

[27] On the 16^th day of the trial, the Crown led Mrs S in order to show that, in the course of 28 April 1998, the appellant had been agitated and not in his normal frame of mind. Mrs S owned a café in Elgin and was a customer of the appellant. He regularly delivered fruit and vegetables to her on a Tuesday and he had done that on 28 April 1998. The advocate depute began a line of questioning, in which the following exchange took place:

"AD When you saw Mr Fraser was he a chatty person or was he sombre or - I mean generally speaking?

SS He had always been a very chatty, forthcoming person until after he had been imprisoned for a previous incident and then his personality seemed to change and he was very quiet and often agitated (emphasis added).

AD On this particular day can you think how he was?

SS He - well, as I say, since the previous incident where he was imprisoned -

AD Well, hang on -

SS That day - he was quite agitated that day, yes.

AD Quite agitated that day. The day before - that's the Tuesday - did you see him on the Monday?

SS Yes.

AD How was he then, was he any different to how he was on Tuesday?

SS Not noticeably, no."

 

[28] When Mrs S finished giving her evidence, the trial judge had raised his concerns about it having been revealed that the appellant had been imprisoned for a "previous incident". Having heard submissions, he decided to give the jury an immediate direction to ignore the reference. He directed them in the following terms:

"Ladies and gentlemen, in the course of her evidence [SS] made reference to the accused having been in prison. You should ignore that reference completely. Whatever she was talking about has no bearing on the matter before you and accordingly you should put that reference out of your minds completely. Do you understand? [all members of the jury gave a positive response]."

 

The judge adjourned the case until the next day in order to allow counsel to consider the matter further.

[29] On the following day, the appellant moved the trial judge to desert the diet pro loco et tempore. He based his motion not solely on the answers from Mrs S, but also on certain things which had been said by Mr Dick and by CM, the wife of Mrs Fraser's father. These passages of evidence, he submitted, had been of a "prejudicial" nature, particularly when taken together with Mrs S's testimony.

[30] The first passage in the evidence of Mr Dick had been on the 5^th day of the trial, when he had made reference to the appellant having spoken of strangulation. The following exchange had taken place:

"AD According to you he told you that he got someone to do it for him.

HD Yes, yep.

AD And what did you understand 'it' to be? Someone to do 'it' for him?

HD Yes.

AD Do what?

HD To murder Mrs Fraser.

AD To murder Mrs Fraser? Did he tell you on any occasion how that was accomplished, how she was murdered?

HD No, em. He was never exactly - say what happened.

AD There may be a whole range of ways to kill someone.

HD Yeah, yeah.

AD Was there any discussion at any time as to how that was achieved in this case?

HD He had once spoken about strangulation but - yeah

AD When was that?

HD Well he spoke about it more than once. One was in a different context. I can't remember when the second time was.

AD When you say different context, what do you mean?

HD Eh, a different occasion.

AD A different occasion?

HD Yes."

 

The trial judge had taken this to mean that the appellant had told him that Mrs Fraser had been murdered by strangulation, but that that information had been provided to Mr Dick by the appellant on two different occasions.

[31] The second passage came on the 6^th day, when Mr Dick made reference to the appellant having been "banned from the house". The trial judge did not consider that to be of any significance in the context of a marital breakdown. The third passage was on the 9^th day, when Mr Dick had referred to his having been "led up the garden path" by the appellant in relation to the state of the relationship between the appellant and Mrs Fraser. When asked by the advocate depute what he had meant by the use of that phrase, Mr Dick had replied, "I think that was to do with 'the assault'". This was a specific reference to the earlier assault of which the appellant had been convicted in 2000.

[32] The fourth passage came in the evidence of CM, on the 14^th day, when she made reference to Mrs Fraser having previously been in a women's refuge "before". Again, in the context of a stormy marital breakdown, the trial judge did not consider that anything sinister was to be taken from that comment.

 

The trial judge's reasoning
[33] The trial judge refused the appellant's motion to desert the diet. It was common ground before the trial judge that the decision of whether to desert pro loco et tempore was a matter for the court's discretion. The trial judge required to desert if the fairness of the trial had been compromised or if there was at least a material risk that it could have been.

[34] The trial judge reports that no fault could be attributed to the advocate depute. He considered that Mrs S had deliberately answered as she did; not out of malice towards the appellant, but rather out of a desire to help him. She had wanted to communicate to the jury that the demeanour of the appellant on 28 April had not been because of something that had happened, or was happening, on that day, but was part of a change in his demeanour which had occurred some weeks earlier. The trial judge took the view that there was nothing in the remark made by Mrs S to relate the imprisonment of the appellant to an assault on Mrs Fraser. The jury had had no knowledge of such an assault having been committed. Neither Mrs S's remark about imprisonment nor Mr Dick's reference to the assault, taken separately, or together, would, in the trial judge's view, have borne an inference that the appellant had been imprisoned on some earlier occasion in respect of an assault on Mrs Fraser.

[35] The trial judge was conscious that, during the course of the original trial of the appellant and at the time of his appeals to the Court of Criminal Appeal and the United Kingdom Supreme Court, there had been extensive publicity. There had been much material on the internet about the case. It was likely that there would have been a reference to the previous assault in that material. The trial judge had already decided that these difficulties could be dealt with satisfactorily by relying on the focusing effect of listening to evidence over a prolonged period and the provision of clear directions to the jury. His observation of the jury had led him to conclude at the time that the jury had been properly focusing on the evidence. All the members of the jury appeared to be paying close attention and a good number of them had been taking notes. When, from time to time, the trial judge had reminded the jury that they should put out of their minds anything that they may have seen or heard in the media, their responses had been positive.

[36] The jury had been aware that this was a retrial and that, at the first trial, the appellant had been convicted of murder. That information was introduced into the evidence by the defence, on the first day of the trial. In his charge, the trial judge gave the jury certain directions on how to approach the evidence that they had heard about the earlier trial. The jury were made aware of the need to take a "robust" approach in relation to extraneous matters. There was, in the trial judge's view, no reason in principle to think that they would not follow the directions given, and to be given, in relation to the remark or remarks which were the subject of the appellant's motion to desert. When he had directed the jury on 15 May that they should put out of their minds the reference to the appellant having been in prison, he asked them if they understood the direction. He noted that all the jurors had responded positively.

[37] The trial judge had regard to the advanced stage which the trial had reached. Chapters of circumstantial evidence had been led and there had been many days of evidence from Mr Dick. The trial judge distinguished Graham v HM Advocate 1983 SCCR 314 and Platt v HM Advocate 2000 JC 468. Having regard to the particular circumstances of the case, he concluded that it was not necessary to desert the trial. Any risk of prejudice could be removed by direction.

 

Charge to the jury

[38] The trial judge charged the jury as follows:

"... you and you alone are responsible for the decisions on the facts of this case as presented to you in the evidence, and you must reach your verdict only on the basis of that evidence and in the light of the directions that I am about to give you.

The direction that you must reach your verdict only on the basis of the evidence has a number of important consequences in this case. First, it means that the evidence that's been referred to is the evidence which you heard in this trial. You are aware that the accused was tried on this charge in 2003 and was convicted. An appeal process led to the quashing of that conviction and the granting of authority to bring a fresh prosecution. Certain references were made in the course of this trial to passages of evidence in the earlier trial and I shall give you directions about that evidence later. But beyond that you should put the first trial and its outcome out of your minds. It was a different trial before a different jury with differences of evidence. You must concentrate on the evidence heard by you in this trial and base your decision entirely on that evidence. Put out of your minds any theories developed by the police in the inquiry or the Crown in the previous trial and concentrate solely on the evidence heard by you in this trial. And you must concentrate on the evidence which is relevant to the charge before you. You will recall that I directed you to ignore an irrelevant and inappropriate remark made in the course of her evidence by SS; I now reinforce that direction (emphasis added) ...

Again I repeat certain things that I mentioned at the beginning of the trial and of which I reminded you from time to time as the trial proceeded. You must put out of your minds anything that before the trial you read in the newspapers or saw or heard on TV or radio about the accused or the circumstances giving rise to this charge, and anything that you read, heard or saw about the case during the trial. You must focus solely on the evidence which you heard in court and proceed on your recollection of that evidence.

I also gave you a direction which I repeated from time to time that you were not to access any website on the internet where information about the accused or the background circumstances might be available. I am confident that all adhered to that direction, but if perhaps inadvertently while surfing the internet you came across such information you must put it out of your mind. Again that is because you must decide the case only on the basis of the evidence you heard in court."

 

Submissions
Appellant

[39] The appellant accepted that whether to desert pro loco et tempore was always going to be a difficult question for the court to answer given that, at the time of Mrs S's reference to the appellant having been in prison, the trial had been proceeding for over three weeks. The case was already a retrial concerned with events that took place 14 years earlier. The original trial had taken place in 2003. It was a matter for the exercise of the trial judge's discretion, but, if the impact of the impugned evidence was that the jury could not realistically be expected to put it out of their minds, desertion ought to have followed (Hill v HM Advocate 2005 JC 259, Lord Macfadyen at para [25]; see also HM Advocate v Fleming 2005 JC 291, LJC (Gill) at para [33]). Fairness of the proceedings was key, but what had come out in Mrs S's evidence had been prejudicial. Although it may not have sufficed on its own to merit desertion, it was liable to have acted as a reminder to the jurors of some of the extensive prejudicial pre-trial publicity or as a prompt to engage in individual research on the internet. There was prejudicial material available in relation to the appellant's conviction for assaulting his wife to the danger of her life. The ready availability of such material had made it important for the judge to give warnings to the jury even prior to the emergence of the passages of evidence complained about.

[40] The jury had been told that they had to take a "robust approach", but such a direction could not be used to excuse whatever prejudice may have arisen. There was a limit to what could be considered "acceptable prejudice". The prompts to recollection and research on the part of the jurors had become too great to be able to rely on the traditional assumption that a jury will follow the trial judge's directions. The tipping point had been reached when the reference to the appellant having been in prison occurred.

[41] The various passages of prejudicial evidence had had a cumulative effect. Four of the five passages had related to problems between the appellant and Mrs Fraser, with three of them referring to the assault on 22 March 1998 and related matters. Mr Dick had referred to an assault, which was clearly a direct reference to an assault by the appellant on Mrs Fraser. The reference by Mrs S to the appellant having been in prison was linked to a question about the appellant's demeanour on the day his wife disappeared. Although there was no breach of section 101 of the Criminal Procedure (Scotland) Act 1995, the import of the offending passages was to the same effect; that is that it revealed a previous conviction.

[42] Having regard to their cumulative effect, the prejudice occasioned by these passages had created irremediable difficulties in securing a fair trial. The offending answers had put a significant and unreasonable strain on the jury in relation to compliance with the repeated judicial warnings as to their task. (See Thomas, "Are Juries Fair", Ministry of Justice Research Series 1/10, February 2010; Tanford: "The Law and Psychology of Jury Instructions" (1990) 69 Neb L Rev 71; "Contempt of Court", Law Commission Consultation Paper 209, Chapter 4). The judge's pre-trial decision on publicity was not directly the subject of the appeal. However, the offending passages had to be seen in the context of the readily available and highly prejudicial material on the internet. It therefore played an important role in the context of the appeal.

[43] The authorities highlighted a range of possibilities open to a trial judge. Where evidence was led which was productive of irremediable prejudice, desertion was necessary (eg Platt v HMA 2000 JC 468). Where the prejudice was less, a suitable direction may be sufficient to cure the problem. In the present case, the only safe course had been to desert.

 

Crown

[44] The Crown responded that the appellant had made no criticism of the trial judge's charge. The jury were presumed to follow the judicial directions they had been given (Clow v HM Advocate 2007 SCCR 201, LJG (Hamilton) at paras [7] and [8]; R v Mirza [2004] 1 AC 1118, Lord Rodger of Earlsferry at paras 152-154).

[45] The decision on whether to desert the trial diet had been a matter for judicial discretion. A judge should desert a trial if its fairness has been prejudiced or where there is at least a material risk that it may have been (HM Advocate v Fleming 2005 JC 291). The trial judge had applied the correct legal test and had not erred in the exercise of his discretion.

[46] It was accepted that the evidence of Mrs S had been potentially prejudicial, in that she had referred to the appellant having been in prison. This evidence had not been elicited by the advocate depute deliberately or carelessly. The Crown had not been at fault. There was no breach of section 101(1) of the 1995 Act. It was the view of the trial judge that the witness had made the remarks deliberately, in an attempt to assist the appellant. Mrs S had been referring to a period of time when the appellant had been in custody. There was nothing in the remarks made by Mrs S that related the imprisonment to an assault on Mrs Fraser.

[47] The trial judge had given an immediate and forceful direction to the jury to disregard the offending parts of Mrs S's evidence as irrelevant. He had then asked the jurors if they had understood the direction and the jurors had responded positively. The trial judge had given the jury appropriate and detailed directions in his charge. The appellant made no criticism of the directions and, with the exception of Mr Dick's passing reference to the assault, nothing in his testimony could be related to the previous assault on Mrs Fraser. References to the appellant being banned from the house or Mrs Fraser having stayed at a refuge would not carry with them any implication of previous violence.

[48] It was only in exceptional circumstances that desertion should be regarded as the appropriate course (Kerr v HM Advocate (supra), Lord McCluskey at para [22]). Graham v HM Advocate 1983 SCCR 314, and Platt v HM Advocate (supra) were distinguishable on their facts. There was no evidential basis for considering that Mrs S's evidence had been of such a nature as would compel a juror to ignore the directions given by the trial judge and conduct research or that it would prompt a recollection of past publicity.

 

Decision

[49] The complaint advanced by the appellant had narrowed to a fine point by the time of the hearing of the appeal. The issue was whether a miscarriage of justice had occurred, in the sense of the appellant not having received a fair trial, by reason of the witnesses' answers, to certain unrelated questions, having potentially prompted the jurors, or one or more of them: (a) to draw an inference that the appellant had a previous conviction for assaulting Mrs Fraser; and (b) as a result, either to recollect adverse publicity about the conviction or to conduct internet or other research which would have uncovered it. The reason for this somewhat convoluted approach arises, quite understandably, from the manner in which the competency of evidence of such past conduct is regarded at present. Evidence that the appellant had assaulted Mrs Fraser to the danger of her life, especially by strangulation, in the recent past (relative to the date of the murder), would normally have been admissible to prove the case against him. It would not have been struck at as being evidence of general bad character. Rather it would have been regarded as specific material capable of adding significantly to the circumstantial case against the appellant. The leading of such evidence does not in any way cause "prejudice" to an accused nor does it create any unfairness. On the contrary it is a legitimate part of the proof against him (ie similar fact evidence; see, specifically in relation to wife assault, Hume: Commentaries ii 413; see also Moorov v HM Advocate 1930 JC 68).

[50] The problem which arises in this case stems from the interrelation between that general approach to evidence of past similar conduct and two further rules that might operate in conflict with it. The first is that evidence of a crime not charged on the indictment is generally inadmissible on the ground of lack of fair notice (Nelson v HM Advocate 1994 JC 94). The earlier assault could not have been, and was not, libelled against the appellant because, even by the time of the first trial, the appellant had been convicted of that offence and repeating the charge in a subsequent libel would have offended the rule against double jeopardy (see now Double Jeopardy (Scotland) Act 2011 s 1). This might conceivably have been circumvented by a simple narrative, rather than a charge, appended to the indictment. However, the second rule is the statutory prohibition on the disclosure of previous convictions prior to the verdict of the jury (Criminal Procedure (Scotland) Act 1995 s 101). Again, it might have been possible to avoid breaching this prohibition by not mentioning the fact of conviction. However, that is not what was endeavoured here. Rather, there was a conscious effort by the Crown to avoid any reference to the earlier assault.

[51] What remained problematic for the Crown, notwithstanding that effort, was the situation where the prohibition was breached, either expressly or impliedly (Cordiner v HM Advocate 1978 JC 64). However, that would, of itself, not necessarily lead to a potential or actual miscarriage of justice which required respectively desertion or the quashing of any subsequent conviction (eg Binks v HM Advocate 1984 JC 108). The court would have to be satisfied that the revealing of the previous conviction had had a "prejudicial" effect. Hence, the ingenuity of the argument presented by the appellant lies in its contention not only that there had been an implied breach of the prohibition but that it had, or at least might have, resulted in prejudice because of its restorative effects on the memory of the jurors relative to past prejudicial publicity about the conviction or its creation of an appetite amongst the jurors for further information about that conviction. Even if, in normal circumstances, evidence of the prior assault were unobjectionable, a "prejudicial" breach of the statutory prohibition would be fatal to the conviction.

[52] For this ground to succeed, the court would have to be persuaded that the answers given pointed towards the possibility of the appellant having been convicted of assaulting his wife on an earlier occasion. The court is not satisfied that this has been demonstrated. The references by Mr Dick to two conversations concerning strangulation both referred to the appellant's alleged confessions to the murder and would not have been understood by the jury to relate to any earlier assault. Mr Dick's mention of the appellant having been banned from the marital home and CM's statement about Mrs Fraser having stayed at a women's refuge would not bear an inference of any significant previous violent incident, which would be likely to have a prejudicial effect on the jury's thinking, far less that the appellant had been convicted of an assault. The only possible material references are Mr Dick's mention of an assault and Mrs S revealing that the appellant had been in prison for a previous "incident". However, even if the jury had been acute enough to consider the existence of a connection between these two statements, made some seven days apart, there is no link apparent between the references. At the time when the appellant had been speaking to Mrs S, he had not been convicted and, if advised, this could have been clarified in cross-examination, albeit that such a course may not have been without its attendant risks.

[53] It is true that the appellant's original conviction in 2003 and the criticism of the trial process leading to that conviction by the United Kingdom Supreme Court in 2011 attracted a great deal of publicity; memorable at least to lawyers and others engaged in the criminal justice system for a number of, perhaps different, reasons. However, the court does not consider that there is any realistic possibility that the short answers, which were given by Mrs S, Mr Dick and CM in isolated moments in the course of a lengthy trial examining in detail the circumstances of Mrs Fraser's disappearance, would have prompted any recollection of a previous conviction in the minds of the Edinburgh jurors. Such recollection would presuppose a remarkable, and it might reasonably be surmised, implausible power of memory retention in the minds of persons with no obvious direct connection to the case, the locality or the criminal justice system.

[54] It must be accepted that it would have been possible for a juror to have searched the internet for information about the appellant. The appellant has, by way of example, produced a BBC News "timeline" for the North East of Scotland which, if it were studied, would have revealed the conviction and sentence of the appellant in 2000 after he had admitted "a reduced charge of compressing his wife Arlene's neck to the danger of her life". No doubt there are other references to this within the ether of the internet. The potential to discover this information is not confined to jurors in the circumstances complained of here. As in many cases, a search of the internet may reveal supposed unpleasant antecedents of an accused; some may be true but others may be false. Prior to the advent of Google and other similar search engines, it was possible to conduct manual searches of this nature, but they were cumbersome, time consuming and relative rarities in the criminal justice system. The advantage of the internet is its speed and ubiquity. It is to be anticipated that almost all jurors will have access to the internet via a computer and/or, more than likely, a mobile phone.

[55] In order to combat the possibility of jurors conducting their own web searches, the courts have adopted a strategy of telling jurors at the start of a trial not to do so and explaining to the jurors why they are being told this. It is a common, and advised, practice to tell jurors that they are not the detectives and that they should not make any investigations or enquiries of their own about anything or anyone connected with the case. They are told that it is vitally important to the administration of justice that they should resist any temptation to carry out an internet search. The reason is often stated as being that the case has to be decided solely on the evidence that the jurors are to hear in court. Some judges ask the jurors to inform on their colleagues in the event of an apparent breach of these words of caution and warn the jury of serious consequences should any juror be involved in such a breach. However, other judges may regard this as overly intimidating and may simply tell the jurors that, if it were discovered that one of them had accessed relevant information on the internet, that could result in the premature termination of the trial or, if a verdict had already been returned, the overturning of the conviction upon appeal. In either case, the jury would be told, a re-trial may be the practical result with all its attendant problems, including inconvenience to almost all directly involved.

[56] Jurors are adults. They have a collective intelligence. Of course, a rogue juror may decide to disregard the admonitions of the trial judge. If that is shown to have occurred, there may be an arguable ground of appeal. However, it is not to be assumed that this will occur. It may be that some aspects of a judge's charge can be difficult to follow. The direction telling the jurors not to conduct an internet search on the facts of the case or the accused is not in that category. The court has no reason to suppose that it will not be understood and followed. In this case, there were clear and repeated directions given to the jury during the trial and again at its conclusion in the charge itself, shortly before the jury retired to consider their verdict. In the absence of material which would tend to demonstrate the contrary, the court must proceed on the basis that the directions were followed.

[57] The court does not consider that there was any material increase in the risk of a juror carrying out an internet search upon the appellant as a result of the answers complained of. In these circumstances, it considers that the directions which were given, including that immediately after the conclusion of Mrs S's testimony, were sufficient to meet any potential prejudice to the appellant as a result of the answers.

[58] Finally, even if there had been an implied breach of the prohibition, it would have remained for the trial judge to determine in the first instance whether the breach had so compromised the prospects of a fair trial, in the domestic sense, that desertion became the imperative, if a potential miscarriage of justice were to be avoided. In this area, the court places considerable weight on the views of a trial judge making the decision at first instance. He has the benefit of presiding over the trial and judging the context of the answers within what, in this case, was a lengthy trial process. He has a considerable advantage over an appellate court in understanding the realities of the situation. The trial judge is best able to assess the likely, and possible, impact of the answers on the jury in light of all that has happened during the trial. Thus, he is afforded a wide discretion in deciding whether: (i) to ignore the offending evidence and do nothing, lest the matter be emphasised; (ii) to direct the jury to ignore that evidence and, as here, to advise the jury that they should do so because it has "no bearing on the matter before" them; and (iii) to desert the diet because of the inevitability of an unfair trial as a result. In this case the court considers that the trial judge took into account all of the relevant factors before deciding upon the appropriate course of action. He reached a balanced and reasonable decision based upon these factors. In such circumstances the court is unable to find fault in his decision.

[59] The court does not consider therefore that the fairness of the trial was, or might have been perceived to be, prejudiced in any material manner. It does have the advantage of looking at the impugned answers in retrospect with all of the evidence summarised and the judge's directions extended. Having considered all of this material it is unable to hold that it has been demonstrated that a miscarriage of justice has occurred. For all of these reasons, the appeal is refused.