APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Kingarth	[2013] HCJAC 172 XC722/12 and XC668/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in the appeals against conviction   by   ASIF REHMAN and ADEL ISHAQ   Appellants;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

Appellant (Rehman): S McCall, Jones; John Pryde & Co (for MSM, Glasgow)

Appellant (Ishaq): CM Mitchell, Mullan; Capital Defence (for Aamer Anwar

& Co, Glasgow)

Respondent: Niven-Smith AD; the Crown Agent

 

20 December 2013

General
[1] On 15 October 2012, after a trial at the High Court at Kilmarnock, the appellants were found guilty of a charge which libelled that:

"on 15 January 2012 at Melville Street, Glasgow you ... did assault William McKeeney, residing at ... Melville Street, Pollockshields, Glasgow, cause him to fall to the ground and repeatedly punch, kick, stamp on his head and body whereby he was so severely injured that he later died ... and you did murder him".

 

Asif Rehman was found guilty by unanimous verdict; Adel Ishaq was found guilty by majority. On 9 November 2012 both appellants were sentenced to life imprisonment with punishment parts of 16 years and three months in respect of Rehman (three months being attributable to a bail aggravation) and 16 years in respect of Ishaq.

 

Evidence
Crown Case
[2] William McKeeney was aged 57 when he met his death. He worked in the building trade and lived with his partner, Anne-Marie Newlands at an address in Melville Street, Pollockshields.

 

MISS NEWLANDS
[3] The main evidence against the appellants came from Miss Newlands. As narrated by the trial judge, Miss Newlands said that, on the evening of Saturday, 14 January 2012, the deceased had gone out for a drink to two nearby pubs. Shortly before 12.30am, Miss Newlands had phoned him on his mobile. He had told her that he was just crossing Darnley Street, which runs at right angles to, and at the eastern end of, Melville Street. Miss Newlands described the deceased as being drunk and assumed that he had had a few more pints than he had perhaps intended.

[4] After the phone call, Miss Newlands went to her livingroom window so that she could see the deceased when he came round the corner from Darnley Street. She did not see him and briefly left the room. On returning, she looked out again and saw two young men of Asian ethnic origin (the appellants) across the street near the corner. She thought that the appellants were breaking up a piece of furniture, but could not be sure as her view was partly blocked by the deceased's lorry. The appellants were kicking or stamping on something on the pavement. As Miss Newlands did not like the look of what was happening, she decided to phone the deceased to tell him to be on his guard.

[5] Miss Newlands went to find her mobile. When she again returned the livingroom, she looked out once more and saw Ishaq across the road standing on the pavement, near the railings of the houses. Rehman was at the road edge of the pavement, continuing to stamp on something. He walked away towards the Darnley Street corner. Ishaq then said something to him and he (Rehman) came back and did some more stamping. Miss Newlands saw Rehman stamp six to eight times. Both appellants then walked round the corner into Darnley Street.

[6] Miss Newlands stood on a trunk under her window and realised that the appellants had been stamping on a person. She ran outside and saw that it was the deceased. He was in a very serious state. She phoned the emergency services at 12.41am. He was taken to the Victoria Infirmary, where he was pronounced dead at 3.40am.

[7] After a brief cross-examination on behalf of Rehman, counsel for Ishaq took Miss Newlands to the detail of a statement taken from her by the police on Monday, 16 January, at her father's home. The statement contains a description of one of the appellants (Rehman) being closer to her on the pavement and the other (Ishaq) back against the railings. Both were standing and then she saw Rehman stamping three or four times. There was no mention in the statement of any active participation by Ishaq. Miss Newlands explained that this was because what she had been talking about to the police, when being interviewed, was the end of the incident. Despite lengthy, multiple and leading questions on behalf of Ishaq, Miss Newlands did not depart from this explanation.

[8] In re-examination, it was established that, in her 999 call, Miss Newlands had described the deceased being "beat up by two boys". At 1.20am in the hospital, she had described to the police "two boys, Asian boys ... stamping their feet on something". That is what she said had happened in her evidence, although she could not recall having said it to the police at that time.

 

IMRAN KHAN
[9] In addition to Miss Newlands, there was evidence that Ishaq's mobile phone had unintentionally called the number of one of his friends, namely Imran Khan, who also lived in Melville Street and knew the deceased, at 12.41am. Mr Khan had answered, said "hello" several times but had received no reply. He could hear the appellants speaking to each other, but could not make out what they were saying. From the noise on the phone, he could tell that they were running. They sounded drunk and "hyped". There was then an Irish voice, which he thought was that of the deceased, saying: "Is there a problem, lads? What's the problem?" He had hung up and tried ringing back, but Ishaq's phone rang out and went to voicemail.

[10] About five minutes later, Ishaq had phoned Mr Khan back. Rehman took Ishaq's phone and, in the course of the conversation, said to Mr Khan: "By the way, don't walk out [of] your house: we've just splattered a c---t outside your house". When Mr Khan asked why, Rehman had replied: "Because the white c---t was getting wide".

[11] Most of this evidence had been extracted from Mr Khan in the course of an elaborate examination consisting of putting the contents of a recorded interview of him by the police in an ostensible attempt to "jog" his memory. It is clear from the transcription of his evidence that Mr Khan's memory was not nearly as deficient as he was attempting to make it out to be. He repeatedly stated that he could not remember exactly, or word for word, what he had been told on the phone by the appellants. He was prevaricating. He had said initially that Rehman had told him only that he had "hit someone in [Mr Khan's] street".

[12] Mr Khan accepted that, in this interview, he had been telling the police the truth. In relation to the accidental call, Mr Khan accepted that there had been a call to him from Ishaq. He was almost bound to do so given that there were telephone records to that effect. The following exchange took place with the advocate depute:

"The statement goes on 'I answered my phone and I said, "Hello," but there was no reply, so I kept saying, "Hello, hello, hello."' Do you remember that call? - No.

'I could hear their voices ... They were talking to each other in English ... They were... "running"... It was like that noise on a mobile phone shaking with the noise although it wasn't a windy night'... Is that what it says? - Yeah.

Do you remember telling police about that? - No.

Were you telling the police the truth? - Yes.

...

Do you remember a call like that that? - No.

It goes on, 'They sounded drunk... ... I heard a voice. It was an Irish voice.' Do you see that? - Yeah.

Do you remember a phone call and hearing an Irish voice? - No.

...

'... My first thought was, "That's Willie's (the deceased's) voice"'. Do you see that in the statement? - Yes.

Did you tell the police that? - Must have.

And was that the truth? - I can't remember. Can't remember this happening.

...

'I heard the Irish voice say "Is there a problem here, lads? What's the problem?"' - That's what it says.

Did you tell the police that? - I'm guessing I told the police all of this.

And is that because that was your memory of what you'd heard and what happened that night? - I think so, yeah.

Were you telling the police the truth? - Yeah."

 

[13] Moving on to the later conversation, the following parts of the statement were put and the examination continued:

"'Fetchy [Rehman] said, "Right, brand new, but by the way don't walk out your house, we've just splattered a c..t outside your house"'. ... Is that what it says? - Yes.

And is that what you told the police? - I think so yeah.

And was that true? - I think so.

TRIAL JUDGE: You think so? - I'm not sure. I can't remember exactly what I told the police.

TRIAL JUDGE: ...you are being asked now not about what you told the police, but whether it was true that Asif Rehman said those words to you? - Yes.

TRIAL JUDGE: It is true? - Yes

...

Do you recall Asif Rehman telling you about 'the white c..t getting wide'? - Honestly I don't, mate.

Would you agree it appears you told the police that? - Yes.

And were you, at the time, telling the police the truth? - Yes."

 

SAJID IQBAL, UMAR BHATTI and CHARLENE MILLOY
[14] After the appellants had walked round the corner into Darnley Street, Rehman had gone up to his family's flat in Darnley Street and changed his clothes. The appellants had then walked back round to the locus and stood at the police crime scene barrier tape. There they met another friend, namely Sajid Iqbal, who also lived in Melville Street. According to Mr Iqbal, both appellants had said to him: "Don't tell no one, we did it". Ishaq said: "We punched his c---t in". Rehman said: "We booted his head in". The last two pieces of evidence had again been obtained as a result of the advocate depute putting the content of a statement to the witness and the witness agreeing that he had told the police these things, having earlier said that he had been telling the police the truth (although he was not asked to repeat that in relation to the specific passages).

[15] On the afternoon of Sunday, 15 January 2012, Umar Bhatti, yet another friend of the appellants, had gone to Ishaq's home and left with him in a taxi, taking the clothes which Ishaq had been wearing at the time of the incident. Ishaq had got out of the taxi and set the clothes on fire in a lane. In the course of the same afternoon, Ishaq phoned a friend, namely Bashir Ahmed, and said to him: "We f...d up". He asked Ahmed for £500 to flee the country. Ishaq continued in the taxi to the house of Charlene Milloy, who was a girlfriend of Rehman. The appellants were arrested at this house on 18 January 2012.

[16] Miss Milloy referred to a conversation with Rehman, whom she had not seen for three weeks, although she had spoken to him on the phone. When he arrived at her house, she had asked him about a Daily Record report of the death. She had not been able to obtain a coherent response from him, although Ishaq had shrugged his shoulders. A statement that she had made to the police after the arrest of the appellants was put to her. In this it is said that she had asked Rehman to swear that he had not been involved. He had just shrugged his shoulders. Miss Milloy accepted that she had made the statement and that it was the truth. Ishaq had also shrugged and said "I didnae mean it".

 

Post mortem examination
[17] The post mortem findings were that the primary cause of death was blunt force trauma of the abdomen, although head injuries were a potential contributing factor. The abdominal injuries had produced significant damage to the blood vessels, with the main source of bleeding being a tear in the splenic artery; a relatively large blood vessel lying immediately adjacent to the spine. There was also disruption of the small bowel mesentery, involving the rupture of numerous small blood vessels. The injuries to the abdomen were indicative of substantial force; most likely heavy stamps, but possibly kicks. There was also considerable blunt force trauma to the head, including a number of patterned (boot imprint) bruises to the face. There was a laceration at the back of the head, which was consistent with either a blow or a fall to the ground. The brain was swollen but it was not possible to be certain about the severity and extent of the damage or to what degree the head injury could have contributed to the death, or even caused it.

 

Defence Case
[18] Both appellants gave evidence. They each accepted that they had been involved in an assault upon the deceased. Rehman claimed that it had been Ishaq who had initially scuffled with the deceased. He had pushed Ishaq out of the way and tried to punch the deceased. The deceased had moved backwards and fallen off the pavement on to the roadway. He had kicked the deceased three or four times on the head, but could not explain why he had done so. Ishaq had kicked the deceased in the stomach two or three times. He did not think that the deceased would die and he had had no intention of killing him.

[19] Ishaq, on the other hand, said that Rehman had deliberately bumped into the deceased as he was walking towards them in Melville Street. The deceased had asked: "Is there a problem here, lads, is there a problem?" Rehman had said something to the deceased and walked up behind him. The deceased had turned round. Ishaq had thrown a punch at the deceased, but missed. The deceased had then punched Rehman on the face. Ishaq ran towards the deceased and punched him on the face. The deceased had taken a few steps back, but Rehman had started punching and pushing him. The deceased had slipped and Rehman had stamped and kicked on the deceased's head and body at least eight times. Rehman had stopped and approached Ishaq, but had then gone back to the deceased and kicked and stamped all over his face and body. Ishaq had told Rehman to stop as he might kill the deceased. When Rehman did stop, he had said to Ishaq: "Let's get out of here". The deceased was not conscious and was breathing heavily when they left him.

 

Trial Judge's Directions
[20] The following directions are relevant to the grounds of appeal:

 

Adoption of statements
[21] The directions on statements by witnesses commenced in standard form on the general inadmissibility of hearsay, subject to an exception whereby a witness could be asked questions as to whether he had, on another specified occasion, said something different. Proof of such a different statement could affect the witness's credibility or reliability, but the content of such a statement could not become evidence against an accused.

[22] The trial judge continued:

"But I have to go further, because the statement can become evidence against the accused, and that has happened in certain instances in this trial, because if the witness says, 'I can't remember what I said,' or, 'I told the truth to the police,' then the witness can thereby adopt the statement as his or her evidence. So in that situation, which has happened, I think, on more than one occasion in the course of this trial, the witness says, 'I told the truth to the police in the statement I gave on such and such a date or in this statement that's been put in front of me,' you can take that statement as evidence against the accused if you are satisfied it has been adopted by the witness" (emphases added, see infra).

 

Specifically in relation to the evidence of Imran Khan, the trial judge added:

"You may recollect the evidence of Imran Khan, who, as far as I recollect, adopted his police statement, that the ... mobile telephone of the second accused, Adel Ishaq, phoned him, I think, automatically or by mistake, in any event, it wasn't a phone call that was made by Adel Ishaq, and he heard voices. And one of them was, he thought, the now deceased, ..., whom he heard say, 'Is there a problem, lads? What's the problem?' It's your recollection of the evidence, of course, that counts, but that's my recollection. [T]hat is not hearsay and it is admissible evidence against each of the accused. That was something said as part of the events which were happening at the time of the incident. Of course, in assessing it, you have to recollect that it is a report by Imran Khan of what he heard being said and [the deceased] is not here to be cross-examined on whether or not he said it. The significance to be given to this piece of evidence is for you to decide, but if you decide that Imran Khan was credible and reliable in that piece of evidence, you can regard it as part of the evidence of the case against both accused, and possibly an important part of the evidence in the case against both accused. So this is an independent piece of evidence in the case against the accused and can corroborate other evidence."

 

 

Wicked recklessness
[23] The directions on murder also started in standard form; distinguishing between intention to kill and wicked recklessness, objectively determined. The trial judge then said:

"An attack in which you are satisfied that the assailant displayed this wicked recklessness as to show that he cared not whether the victim lived or died is sometimes referred to as a 'murderous attack'... In this case, there were no weapons, but it is alleged that there was kicking and stamping when [the deceased] was lying on the ground. Now, you can ask yourselves does that show the necessary wicked recklessness? You can also look at the extent of the injuries and the number of blows which you think must have been inflicted to cause the injuries ...

... If you are not satisfied that the crime of murder had been committed, you would require to look at the question of whether the lesser crime of culpable homicide had been committed."

 

Culpable homicide was then defined. When he came to deal with the evidence of each appellant, the trial judge continued:

"... You have the defence evidence to which you must give equal attention. The first accused [Rehman] asks ... that he be convicted of culpable homicide on the basis that this was not a murderous attack. He admitted kicking, but not, I think, stamping on, [the deceased] 3 or 4 times on his head, and said the second accused kicked [the deceased] in the stomach 3 or 4 times; ... The issue, in his case, is whether he is guilty of murder of culpable homicide. In looking at that question you are ... entitled to have regard to the nature and extent of the violence, particularly, you may think, whether there was repeated stamped (sic). The Crown argued that there was repeated stamping ... The first accused said in his evidence that it was not true that he did not care if his victim lived or died, and you also have to take that into account. So ... in his case, the question is was there the necessary wicked recklessness? If you find that there was, the crime would be murder; if you are not satisfied that there was, the crime would be culpable homicide."

 

Standard of proof
[24] On this matter the trial judge said:

"Thirdly, the standard of proof which the Crown must meet is proof beyond reasonable doubt. If having heard all the evidence, you are left with a reasonable doubt about the guilt of the accused to some extent, then you must acquit him to that extent" (emphasis added, see infra).

 

Concert
[25] After dealing with wicked recklessness, the trial judge directed the jury as follows:

"... only ... the murder charge remains for your consideration. ... You will have to consider the evidence against each accused on that charge separately and return separate verdicts against each accused.

It is not necessary for the Crown, in order to obtain a conviction for culpable homicide or for murder, to show which accused struck the fatal blow. Where two people do serious injury to a victim and the victim dies, then they are, in law, responsible for his death. Anyone who joins in an operation of which death is a foreseeable result is guilty of homicide that is either culpable homicide or murder, depending on which you judge to be the appropriate crime. Moreover it matters not that the precise mechanism of death was not foreseeable or was unusual. If the assault which was the type of assault which could foreseeably cause death, then those who participate in it are guilty of murder or, at least, culpable homicide.

In this case ... there are two accused, and they are charged jointly with the crime. As we say they are charged with acting in concert. Normally a person in the criminal law is responsible only for his own actions and not for what somebody else did. But if two or more people act together in committing a crime each of those persons can be responsible not only for what he himself does, but for what the other person does while committing that crime. That arises if, first of all, people knowingly engage together in committing a crime; secondly, what happened was done in furtherance of that purpose; and thirdly, what happened did not go beyond what was planned by or reasonably to be anticipated by those involved. ...

A crime ... can arise spontaneously, and two people can join together to commit a crime jointly on the spur of the moment. It doesn't have to be planned in advance. And if you are satisfied that they were acting together in furtherance of a common criminal purpose, in this case the assault on [the deceased], then each is responsible for all that happened, the attack is a joint attack. Any acts outwith the knowledge of one of the perpetrators cannot be brought home to him. Here, the Crown says that there was a joint or common purpose in attacking [the deceased] by punching and kicking and stamping and that you can infer that the actions of each accused came within that common purpose, so that each is guilty for everything that happened. ...

So far as the second accused is concerned, his evidence is that all he did was to punch [the deceased] once. It is for you to decide whether or not you accept that evidence. If you do, the most of which he could be convicted would be assault by punching. You would delete everything else in the charge apart from the punch. If you were satisfied that he participated in a murderous attack, that is one displaying the wicked recklessness, as a result of which [the deceased] died, then you could convict him of murder. If you are not satisfied that the attack was murderous in nature, you could convict him of culpable homicide. If you were satisfied that his involvement was restricted only to assault on [the deceased] and that the assault was not related to his death, you could convict him only of assault. ... This is not a case where there is a question of an entire acquittal of either accused; that is because of the evidence they gave in the witness box".

 

Statements to Imran Khan
[26] The trial judge directed the jury in these terms:

"When an accused makes a statement which incriminates him or her, it is evidence only against that accused if it was made in the absence of another accused. The rule is this: a statement made by one accused outwith the presence of another accused, cannot be evidence against that other accused. ... If you are not present when a statement against you is made you do not have the opportunity to contradict it, and in these circumstances a statement made against you outwith your presence does not constitute evidence against you. For a statement to constitute evidence against you, you must be present at the time and in the position to contradict it as each accused is, during the trial through his counsel, able to challenge any statement made by a witness in the witness box".

 

The trial judge told the jury that they should not consider what was said by Rehman on the telephone to Khan as evidence against Ishaq in relation to whether the murder was racially aggravated. However, when it came to the generality of the phone call, the jury could use what Rehman had said to Mr Khan in the call as corroboration. The same considerations applied to what had been said to Sajid Iqbal and his reaction to Miss Milloy's questions. He continued:

"For corroboration against [Ishaq] the Crown rely on the evidence of Imran Khan that [Ishaq] was present when [Rehman] made the remark on the phone; the statement alleged to have been made by [Ishaq] to Sajid Iqbul, 'He started it and we finished it' and also 'We punched his c-t in' before [Rehman] made his remark; and the alleged remark to Charlene [Milloy], 'I didnae mean it'".

 

He went on to mention Ishaq's request for money to go abroad and the remarks heard by Mr Khan which formed part of the res gestae and were suggestive of the deceased being accosted by both appellants.

 

Grounds of Appeal and Submissions
[27] The appellant Rehman did not seek to argue ground of appeal 2 on directions relating to majority verdicts. It was also, correctly, accepted by both appellants that the grounds of appeal did not give rise to any Compatibility Issues.

 

GROUND 1 - ADOPTION OF STATEMENTS (also Ishaq ground 3)
[28] Rehman submitted that the directions in relation to the adoption of prior statements were inadequate and incorrect. There were four situations in which statements could be used in evidence and in three of them they could be used to prove fact. First, at common law, they could be put to a witness if he was able to remember an incident but not a particular detail (Frew v Jessop 1989 SCCR 530). For the content of the statement to become proof of fact, the witness had to confirm the statement as truthful and the terms of the statement had to be proved. Secondly, again at common law, there was the situation where the witness has no recollection of the incident, but remembers giving a statement to the police, although not the detail of that statement (Jamieson v HM Advocate (No 2) 1994 JC 251). Again, for it to become proof of fact, the witness had to confirm the truthfulness of the statement and its terms required proof. Thirdly, under statute, there was section 260 of the Criminal Procedure (Scotland) Act 1995. The witness had to accept that the recorded statement was made and then "adopt" the statement as true before it became proof of fact. There was no requirement for loss of memory. Fourthly, under section 263(4) of the 1995 Act, a "different" statement could be put to a witness but only to test his credibility and reliability.

[29] The trial judge had failed to set out the conditions which had to be satisfied before the jury could treat the content of statements put to the witnesses (namely Miss Newlands, Imran Khan, Sajiq Iqbal and Miss Molloy) as evidence against an accused (see A v HM Advocate, 2012 JC 343, Lord Bonomy at paras [19] and [20], Lord Emslie at para [33], Lord Marnoch at paras [44]-[45]). The directions did not state that it was a matter for the jury whether a particular part of a statement was evidence against either accused. The trial judge's use of "or" in this part of his charge had been a misdirection. It had also been an error to direct the jury that the content of a statement could only be evidence against an accused. Furthermore, Mr Khan had not just been referred to one statement, but two.

[30] The directions were inadequate to explain what to do when the witness had said that he had told the police the truth but his statement contained a different, or less certain, account from that given later in evidence. This was important when a witness had said that he could not remember, when speaking to the police, what an accused had said to him but had provided the police with the "gist" of the conversation. The materiality of the absence of directions was particularly acute in relation to whether Mr Khan had accurately remembered the word "splattered", as this may have had an important bearing on the jury's assessment of Rehman's "mens rea". In the case of Mr Khan, the trial judge had stated to the jury that the witness had adopted the statement and this amounted to trespassing into the jury's territory. In relation to each of the witnesses, some had accepted that their statements had been true and others had said that they could not remember whether what had been said was true or not. It was important, in these various situations, to make it clear to the jury what the purpose of putting the statement had been and how it could be said that a witness had "adopted" a statement, or a part of it. At no time had the trial judge dealt with the individual statements put to witnesses, or parts of them. He did not explain to the jury what to do with the statements if they, or parts of them, had not been adopted.

[31] Ishaq's submission took on a numerically structured form. First, the trial judge had introduced adoption as a sub-species of prior inconsistency. He did not tell the jury what adoption achieved. There ought to have been a specific direction that, once a statement had been adopted, it became evidence as if the witness had said it on oath in the witness box. There was a need for unambiguous acceptance before adoption could be said to have applied (A v HM Advocate (supra), Lord Marnoch at para [34]). Secondly, the error in relation to the use of the disjunctive "or" had been material, because almost all the witnesses had said at some point that they could not remember certain matters or that they had told the truth, yet they may not have adopted the content of the statement put to them.

[32] Thirdly, the trial judge had expressed the view that Mr Khan's statement had been "adopted" and was "evidence against" the appellant, although it might also have been "for" him. Fourthly, the trial judge had referred to statements as a totality. It had not been made clear that a witness might adopt some parts of a statement, but not others. Fifthly, the trial judge had not explained what the jury should do if they did not accept that what they had said to the police had been the truth (see A v HM Advocate (supra), Lord Emslie at para [33]). Sixthly, there had been no specific direction on the purpose of putting the statement to the witness (ibid, Lord Bonomy at para [18]). Seventhly, the specific direction that Mr Khan had adopted his statement ought not to have been given and, in any event, he had been referred to more than one statement. He ought not to have stated his own views on whether adoption had occurred (ibid at para [13]).

[33] In relation to the direction about the statements only being evidence against the appellants, some of the witnesses had said things in their statements which were supportive of Ishaq's position. This included Mr Khan's description of the state of Ishaq's inebriation and his being under the malevolent influence of Rehman.

 

REHMAN GROUND 3 - WICKED RECKLESSNESS

[34] The trial judge had not given sufficient directions on how to determine whether there had been wicked recklessness. There had been a failure to invite the jury to consider the appellant's evidence when considering this issue. The jury ought to have been directed to consider whether, if they concluded that the appellant had only kicked the deceased, this was sufficient to prove wicked recklessness (Elsherkise v HM Advocate 2011 SCCR 735). Kicking a person three or four times on the head, whilst he was on the ground, did not necessarily entail such recklessness (Parfinowski v HM Advocate [2013] HCJAC 123).

 

REHMAN GROUND 4 -STANDARD OF PROOF
[35] The trial judge had failed to direct the jury that they had to be satisfied beyond reasonable doubt that the appellant was guilty of murder and that, if they were not so satisfied, they ought to return a verdict of guilty of culpable homicide. The directions given were vague, ambiguous and confusing. The confusion arose from the use of the words "to some extent you must acquit him to that extent" (supra). This confusion would have been compounded by the later comment by the judge that, if they believed the evidence of the appellant, then they would require to take that evidence into account. The effect of having a reasonable doubt had not been made clear.

 

REHMAN GROUND 5 - CONCERT (also Ishaq ground 1)

[36] Rehman submitted that the trial judge had erred in failing to direct the jury that there was a requirement to examine the case against each accused separately. The directions on concert had been insufficient, given the emphasis on the importance of considering each accused separately (McKinnon v HM Advocate 2003 JC 29 and Cussick v HM Advocate 2001 SCCR 683, Lord MacLean at para [8]; Parfinowski v HM Advocate (supra)). The trial judge ought to have provided directions on the need for the jury: (a) to look at each individual separately with a view to determining whether, from the evidence of their individual actings, there was a sufficiency of evidence; (b) if so satisfied, to consider whether the accused were acting in pursuit of a common purpose and what that purpose was; (c) to establish that what happened did not go beyond the scope of that plan; and (d) thereafter, if concert were not established, to convict each accused only of what he did.

[37] The trial judge had directed the jury that, if they were satisfied that the accused were acting together in pursuit of a common purpose, they would both be responsible for all that happened. He had stated that death had to be a foreseeable consequence of the common purpose, but he had not made it clear how that related to the circumstances of the present case. The jury may have been left with the impression that, so long as a person was engaged in an assault to any extent, he could be guilty of murder. Although Miss Newlands had given evidence that Rehman's role had been more prominent, the appellant's evidence had been to a different effect; that it was the co-accused who had delivered the fatal blows to the deceased's stomach. The jury would have had to resolve this difference and to consider whether the appellant's evidence raised a reasonable doubt as to his involvement in concert. By the time he came to give his directions about Ishaq's involvement, there was an assumption that, by then, a murderous attack had been in progress. That did not follow from Rehman's account.

[38] Ishaq adopted the generality of the submission made by Rehman. The trial judge ought to have made it clear that, before any issue of concert arose, the jury ought to have considered the evidence against each accused separately and, only if satisfied that a sufficiency arose, should they have gone on to consider the issue of concert. They ought to have been directed to consider whether the accused were acting in the course of a common purpose and, if they were, what the scope of the purpose was. The jury ought to have been specifically directed that if they were satisfied that they did not find the accused to be acting in furtherance of such a purpose, they could only convict each accused of what each did. First, there was a proper evidential basis for the jury considering returning separate verdicts against both accused (cf Gardener v HM Advocate 2010 SCCR 116). Secondly, the trial judge ought to have directed the jury in the way proposed in Cussick v HM Advocate 2001 SCCR 683. Thirdly, the issue of whether there had been a concerted murderous attack was critical to the appellant's defence, as he had contended that his only involvement had been a punch. Fourthly, although the judge had addressed the case against each accused separately, that had been in the context of considering what to make of the defence evidence.

[39] The directions on concert ought to have been given before those on wicked recklessness. A conclusion on murderous intent could not be reached unless concert were established against a particular accused separately (Carr and MacNeill v HM Advocate [2012] HCJAC 130, Lord Clarke at para [7]). The jury ought to have been directed on the need to focus on the position of each accused "throughout the incident" (ibid, para [8]). At no point did the trial judge tell the jury what they were to do if they did not find concert established.

 

ISHAQ GROUND 2 - IMRAN KHAN

[40] The trial judge misdirected the jury in relation to the use that could be made of the evidence of Imran Khan against the appellant. The judge's directions on the use which could be made of statements of one accused in the presence of another had been unclear. In addition to directing the jury that the evidence of Mr Khan could not be used to prove the racial aggravation against Ishaq, the trial judge ought to have directed the jury that the comments made by Rehman to Mr Khan on the phone could not be used by them in considering whether the two accused were acting in concert. However, the trial judge had stated that it was open to the jury to have regard to these comments. First, there was a general point made about communication by phone. The conversation between Rehman and Mr Khan had not been one at which the appellant had been "present", since, although he had been with Rehman (as he accepted in evidence), he was only hearing one side of the conversation. For the statement to have constituted evidence against the appellant, he would have had to have been in "a position to contradict it". The appellant was not in such a position because he did not have the phone. In order to disassociate himself from the comment, he would have had to have taken the phone from Rehman and explained to Mr Khan that he disagreed with what had just been said. The conversation was only relevant in so far as the appellant's reaction was proved. There was no evidence of a positive reaction. In relation to the racial aggravation, the trial judge had been correct in relation to disassociation relative to the use of the word "white", but it had been unreasonable for the appellant to have disassociated himself from the other comments which suggested a joint purpose. The trial judge had misdirected the jury when he had said that this phone conversation could be used as corroboration of the case against the appellant.

 

Crown
GROUND 1 - ADOPTION OF STATEMENTS
[41] It was important to remember that a judge's charge is a communication to the jury, made in a particular context; ie the evidence led and the Crown and defence speeches (Afzal v HM Advocate [2013] HCJAC 103, Lord Brodie at para [13] citing Withers v HM Advocate 1947 JC 109, LJG (Cooper) at 115; and Gemmell v HM Advocate 1980 JC 16, LJC (Wheatley) at 21). It was not appropriate to examine the charge meticulously without regard to the evidence and those speeches. The use of "or" had been a slip of the tongue, but the trial judge had gone on to make it clear that the essential ingredient, before the content of a statement could be used as proof of fact, was that the statement had contained the truth. In that way, a witness could "adopt" the statement. Otherwise the judge had said that it could be used only to assess the testimony of the witness.

[42] The trial judge had given his directions in light of the Crown's speech, which had relied on certain limited passages in the witnesses' statements as adopted by them. Thus, in relation to Imran Khan, the Crown had founded upon the phone calls and, in particular, the use of the word "splattered" and the witness hearing the appellants running and the deceased's voice. Mr Khan had accepted that he had told the police about those matters and that, when he had done so, he had been telling the truth. The judge had been correct to direct the jury to that effect, although he had left whether adoption had occurred to them by stating, in this particular context, that it was their recollection which counted. All the other material witnesses had accepted that they too had told the police the truth in relation to the passages relied upon by the Crown. None had said simply that they could not remember what they had said to the police.

[43] The directions proposed by the appellants were cumbersome, unworkable and unnecessary. There was no need to provide the jury with a treatise on the law of statements. All that was required was a direction that they could use the statements to test the credibility and reliability of the witnesses and as proof of fact if the content were adopted. The use of the word "against" was of no moment, as no statement relied upon by the Crown, as adopted, had been "for" the defence. In relation to Miss Newlands, the direction had been that the jury could use her statement to test her credibility and reliability as Ishaq's defence had urged upon the jury. The original purpose of putting the statement to the witness was neither here nor there. In any event, no miscarriage of justice had occurred.

 

GROUND 3 - WICKED RECKLESSNESS
[44] Similar considerations applied to the appellant's criticisms under this ground. The analysis of the charge had been as if it were a conveyancing document, without regard to the context in which the directions had been given. The jury had heard the uncontradicted evidence of the pathologist and, having regard to that evidence, the issue for them had been made clear. The deceased had multiple separate injuries; each one of them potentially the result of a separate blow. Yet the submission to the jury on behalf of Rehman was that the attack had not been murderous, as there had been no fractures to the face, nor bleeding on the brain. This was despite the pathologist stating that the splenic artery damage was an injury not normally encountered, other than in the event of a fall from a high building. The defence submission had been that the attack, as a whole, had not been a murderous one. Against that background, the trial judge's directions had been accurate and made it clear that the decision on that matter was one for the jury alone to take.

 

GROUND 4 - STANDARD OF PROOF
[45] Once again, there had been a clinical examination of the content of the charge, rather than an approach which looked at the whole content of the directions. There had been no question of the complete acquittal of either of the accused and the jury had been told that any conviction had to be based upon proof beyond reasonable doubt, based upon corroborated evidence. The trial judge had already explained to the jury what reasonable doubt meant and had correctly explained to them that if they were not satisfied "to some extent", then they had to acquit to that extent. This was quite clear and, in the case of Rehman, meant that only a conviction for culpable homicide could follow.

 

GROUND 5 - CONCERT
[46] The Crown case had been predicated on there being a concerted attack. That is what Miss Newland had described. The Crown could not establish which of the appellants had struck the fatal blow. Both Parfinowski v HM Advocate (supra) and Carr and MacNeill v HM Advocate (supra) were distinguishable. In the former, the main attack had been by a co-accused with a baseball bat and the appellant's involvement had not involved any weapon. In the latter, the issue was who had used the knife to deliver the fatal blow. The issues in this case were different, where no weapon had been used by a single individual. The trial judge had given adequate directions on the route to murder and had left the appropriate alternative verdicts open for consideration in respect of each appellant.

 

GROUND 2 (ISHAQ) - IMRAN KHAN
[47] The jury had been entitled to take into account Ishaq's lack of reaction to the use of the word "splatter". The criticisms concerning the reasonableness of reacting went only to the weight of the evidence. It had been accepted that the appellant had remained silent in the face of the allegation. The trial judge had erred in not allowing the racial aggravation to go forward for the jury's consideration. However, that was to the appellant's benefit. It may be that the appellant could not be expected to react to the use of the word "white". It was different in relation to the word "splattered". The evidence of the conversation was admissible because it had occurred in the presence of the appellant.

Decision
Ground 1 - Adoption of prior statements
[48] The charge requires to be read as a whole. The parts complained of must be seen, not in isolation, but in context (Walker v HM Advocate, [2013] HCJAC 83; Lady Dorrian at para [23]; Cussick v HM Advocate, 2001 SCCR 683, Lord Maclean at para [8]; Afzal v HM Advocate [2013] HCJAC 103, Lord Brodie at [13] citing Withers v HM Advocate 1947 JC 109, LJG (Cooper) at 115; and Gemmell v HM Advocate 1980 JC 16, LJC (Wheatley) at 21).

[49] It is possible to carry out an in-depth analysis of the various situations in which the content of a statement to the police, if admitted or proved, can be used as evidence against (or for) an accused person and those in which it can only be employed to test the maker's credibility and reliability. Tracing the history of the increasing use of statements in criminal trials may be an interesting topic for the lawyer. It was done recently in A v HM Advocate 2012 JC 343 (Lord Bonomy at paras [1] to [6]). However, the important feature about the use of this technique in modern times is that often "the purpose is not clearly identified at the outset and ... the examination proceeds in a fairly haphazard way" (ibid, para [1]). Nevertheless, put simply, if a witness accepts that "his statement contains the truth ... [it] becomes part of his evidence" (ibid, para [3], cf Lord Emslie's different formulation in relation to the truth "as then perceived" at para [28]).

[50] The requirements that were mentioned in A v HM Advocate (supra) that the witness must have a deficient memory and that a police officer requires to speak to the statement (para [4]) are not of universal application. The court in A may have been referring only to situations in which the witness has not accepted that a particular part of a statement had been said, or was true (ibid, para [3]). Certainly, if a witness accepts that he did make a truthful statement to the police and accepts also that the record put to him is an accurate reflection of what he had said to the police, no more is required for the content of that statement to be "adopted" and thus available as proof of fact. The jury do not have to accept that a witness's apparent failure to recall events is genuine. There is no need for independent proof of the statement if the witness says, by reference (for example) to a signature, that it is what it bears to be.

[51] The court in A v HM Advocate (supra) recognised just how difficult the indiscriminate use of statements can make the giving of directions to a jury. However, the decision-making process for that jury may be made even more difficult if what follows is an over-elaborate, legalistic series of directions to the effect that answers, contained in an examination or cross-examination of a witness, require scrutiny in minute textual detail according to precisely what was said about a particular phrase contained within a lengthy prose narrative as compiled by the police. It may be difficult for a jury to recollect, in the course of their deliberations, whether a witness has said that he/she did or did not recall that a part of a statement had been said and, if it had, whether or not it was or was not accepted as the truth. However, solemn criminal trials do not proceed upon the meticulous scrutiny of a written transcript of the testimony of witnesses but within an oral and aural tradition of the jury listening to the evidence, having it analysed, to the extent deemed prudent by prosecution and defence, in the speeches and being directed on how to approach it in light of what ought to be, in the normal case, general directions on how to approach particular categories of evidence, including, of course, the content of statements recorded by the police. Care should be taken to ensure that these directions are neither unnecessarily intricate on the one hand, nor condescending on the other. The jury must be presumed to have a functioning collective intelligence, quite capable of grasping what the testimony of a witness ultimately amounts to.

[52] The trial judge's approach followed this tradition. He gave the jury the standard directions on hearsay and then dealt in general terms with the exception regarding the use of prior inconsistent statements. His directions on the adoption of statements were, from a practical viewpoint and in light of the evidence in the trial as focused in the speeches, adequate. Most important, they were clear in telling the jury that adoption occurs when a witness says that he told the police the truth and that a particular statement to which he has been referred is correctly attributed to him/her. The trial judge's reference to "or" may have been a slip of the tongue but, seen in context, his meaning is transparent. Equally, his reference to evidence "against" an accused was accurate in the context of a direction designed to deal with the Crown's submission to the jury on what can constitute evidence "against" an accused. He did not say that what was said could not be used as evidence in favour of an accused and there is no reason to think that the jury would have drawn such a strange inference from what he did say.

[53] The trial judge referred the jury to the fact that, according to his recollection, Mr Khan had, at one point in his evidence, adopted the relevant part of a statement, to a particular effect. However, he left it to the jury to decide whether they accepted that such adoption had been made and what to make of it. No doubt, in this respect, the jury would have considered Mr Khan's apparent attempts to qualify the clear terms of his statement by reference to it only containing the "gist" of what he had recollected. It is important to note that, ultimately, despite any such qualifications, this witness, and the others to whom statements were put, did not dispute that what was contained in the written record, in so far as it was founded upon by the Crown, was an accurate account of what they had said (cf A v HM Advocate (supra), Lord Marnoch at para [44]) or that their recollection then differed (as distinct from being incomplete) relative to what they were able to remember at the trial (ibid, Lord Bonomy at para [14]).

 

Ground 3 - Wicked recklessness
[54] Rehman admitted kicking the deceased on the head 3 or 4 times. In these circumstances, on one view, the appellant was perhaps fortunate that the trial judge did not direct the jury to convict of murder standing the nature of the violence delivered (Elsherkise v HM Advocate 2011 SCCR 735). He did not do so. Rather, he gave the jury quite adequate directions on the concept of wicked recklessness. It would have been abundantly clear to the jury that, if they did not find wicked recklessness established, the conviction could only be one of culpable homicide. Given the strength of the evidence from Miss Newlands, which the jury must have accepted in its essentials along with the pathology, it would have been mildly astonishing if the jury had returned any other verdict than murder.

[55] The jury had heard uncontradicted evidence of the findings on post mortem examination. These (supra) demonstrated the use of extreme and prolonged violence. Rehman had admitted that he had engaged in a concerted attack upon the deceased, causing his death, by his acceptance that he was guilty of at least culpable homicide. The only matter which he seemed to think might provide a defence was that the attack as a whole was not a murderous one. Although the trial judge cannot be criticised for allowing the issue of culpable homicide to go to the jury (Parfinowski v HM Advocate [2013] HCJAC 123, Lady Dorrian at para [22], following Brown v HM Advocate 1993 SCCR 382), it might equally have been difficult to criticise him if he had not done so. In the context of the defence presented by Rehman, where he had accepted participation in a concerted attack leading to death, the primary issue was not whether what he himself did was itself wickedly reckless, but whether the attack, to which he undoubtedly lent his support, was a murderous one, looked at objectively (McKinnon v HM Advocate 2003 JC 29, LJG (Cullen) at para [22]). Once the relevant concert (see infra) is established, there is "no separate question as to whether the individual accused had the necessary criminal intent" (ibid, para [27]). In this respect, the defence approach to the law was correct and the direction from the trial judge that the jury could take into account Rehman's subjective mental state, as he delivered particular blows, was one very much in his favour. It is clear from it that, contrary to the submission, the trial judge did direct the jury to have regard to the appellant's evidence on this aspect.

 

Ground 4 - Standard of proof
[56] The directions of the trial judge on the onus of proof were standard in form. They were entirely appropriate for the appellant's case, in which the only alternatives were murder or culpable homicide. What the judge said made it clear to the jury that, if they were not satisfied beyond reasonable doubt on the question of murder, then they had to return a verdict of culpable homicide. That is all that the judge required to do.

 

Ground 5 - Concert
[57] There is force in the submissions that, as a generality, when concert is a live issue in a spontaneous street attack (especially where a weapon is used by some, but not all, participants), it will normally be desirable for a trial judge to follow the standard directions recommended in Cussick v HM Advocate 2001 SCCR 683 (Lord MacLean at para [8]). The jury will have to consider whether the accused, or one or more of them, were acting in pursuit of a common criminal purpose. If they do not find that established, they require to be directed to convict an accused only of what he himself is proved to have done. Exactly how this is done, and when in a charge a particular direction is given, in the context of a particular case, will often depend upon the facts and circumstances emerging at trial. In this case, as has already been observed, Rehman accepted that he had been involved in a concerted attack on the deceased resulting in his death. Ishaq, on the other hand, maintained that, although he had punched the deceased, he had not been involved in any concerted attack involving either Rehman or any potentially fatal blows. That was the context in which the jury had to be directed.

[58] The trial judge made it clear to the jury that they had to consider the evidence against each accused on the charge separately and to return separate verdicts (cf Carr and MacNeill v HM Advocate [2012] HCJAC 130, at para [7]). He directed them specifically, and in understandable language, that anyone who joins in an unlawful attack in which death is a foreseeable result, is guilty at least of culpable homicide. However, the judge continued that it was a condition of an accused being found guilty of the relevant crime that what happened did not go beyond the scope of the common criminal purpose, or what might reasonably have been anticipated in consequence of that purpose. Although he said that each would be responsible for everything that had happened in the case of a joint attack, that was qualified by the statement that any acts outwith the scope, as understood by one of the perpetrators, could not be brought home to that perpetrator. The trial judge emphasised that the Crown position was that this was a joint attack by punching, kicking and stamping. If the actions of each accused came within that common purpose, each would be guilty of everything that had happened.

[59] Having dealt with the generalities, the judge dealt with the circumstances of each appellant. As already noted, in relation to Rehman, the direction that the jury had to take into account his subjective mental state at the point of the attack was a favourable one standing the principle that once the relevant concert is established, no separate question of individual intent arises (McKinnon v HM Advocate (supra), LJG (Cullen) at para [22]). In relation to Ishaq, the trial judge made it clear to the jury that, if they accepted his evidence that he had only delivered one punch (or had a reasonable doubt about that), then they could only convict him, not of culpable homicide, since that would presuppose concert with Rehman, but only of assault. He also directed the jury that if they were not satisfied that he had participated in a murderous attack, then he could not be convicted of murder. These directions were entirely adequate for the particular circumstances of each appellant.

 

ISHAQ GROUND 2 - IMRAN KHAN
[60] The trial judge gave clear directions regarding the admissibility of a statement by a co-accused in relation to proof of the case against another. In particular, he explained that a statement by one accused can only become evidence against another if he is present at the time and in a position to contradict it. It is not unreasonable to describe this direction as somewhat spartan. The statement does not become evidence against the other accused merely because that accused is present when it is made. It is the accused's reaction or failure to react to an account suggesting his guilt that creates the incriminating evidence. Silence can be construed as an admission (Buchan v HM Advocate 1993 SCCR 1076, LJC (Ross) at 1081, approving Renton & Brown's Criminal Procedure, 5^th ed para 18-41a (6^th ed para 24-56) following Lewis v Blair (1858) 3 Irv 16). However, that it is the reaction or lack of it that is significant is reasonably clear from the trial judge's reference to the ability of the listener to contradict what was said.

[61] If the statement by Rehman on the phone to Mr Khan had stood alone, there might have been room for some concern, albeit of a limited nature. The telephone conversation between Rehman and Mr Khan was conducted on Ishaq's phone, when Ishaq was present. He could have retrieved his phone (and presumably did) and was therefore in an ideal position to contradict what had been said. In any event, the judge's directions were in the context also of other statements made directly by the appellant to Sajid Iqbal that: "We punched his c-t in" and to Miss Milloy that: "I didnae mean it". Seen in the context of all the various post event statements, the directions were adequate to deal with the live issues at trial.

[62] For all of these reasons, the appeals against conviction must be refused.