Appellant: A Ogg, Solicitor Advocate; Callaghan McKeown & Co, Renfrew

Respondent: Prentice QC AD; the Crown Agent

26 November 2013

General

[1] On 21 November 2012, at the High Court in Glasgow, the appellant was found guilty by the unanimous verdict of the jury of the murder of Paul McGee by stabbing on 25 October 2009, at Lochwinnoch. He was sentenced to life imprisonment, with a punishment part of 20 years, backdated to 27 October 2009 when he had originally been remanded in custody. A previous trial, which had taken place in April 2010, had also resulted in a conviction, but that conviction was quashed on the basis of a misdirection, relative to the statements of a former co-accused, on 21 December 2011 (2013 SCCR 113). A re-trial was ordered, but the first of these was deserted in July 2012, after it was ascertained that a local paper had disclosed the existence of the previous trial verdict. The second re-trial commenced on 9 November 2012.

Ground of appeal 1 - motion to adjourn

[2] The first ground of appeal for the appellant is that the trial judge erred in failing to adjourn the trial diet for a period of two weeks to enable certain "prejudicial headings and straplines to be removed from internet links". The trial judge, it is said, "failed to balance the interests of the appellant in having all references removed, particularly as there had been two previous trials".

[3] The trial judge reports that what had happened, after the first re-trial had been aborted, was that the Crown had made strenuous efforts to remove any material concerning the previous trial from various internet sites. By 2 November 2012, all of the relevant articles published by the BBC, STV, The Sun, The Daily Record, The Herald and The Paisley Daily Express relating to the appeal, and the original trial, had been removed from their websites. However, although offending articles had been removed, certain links remained. These contained material which, it was said, ought not to be disclosed to the jury. One example from The Herald was a link containing the headline "Vicious Barry McGrory found guilty of murdering hero soldier Paul McGee 22 April 2010; Evil Killer, Barry McGrory was last night facing life behind bars after being found guilty of the murder of hero Paul McGee". Efforts had been made to contact Google with a view to removing cachéd links, but the process of doing so was, according to experts within the Crown Office, something which could take weeks, months or even years. There was no guarantee that it could ever be achieved. The best estimate was that it would take at least weeks and probably months to remove even just the Google links. The position would not be substantially altered, according to the Crown, if the trial were adjourned for the 2 week period requested.

[4] The trial judge concluded that, on the basis of the information put before him, it would not prove possible to have all links removed in the timescale proposed, or in any realistic timescale or ever. In any event, he was satisfied that the fairness of the trial could be ensured by the court taking appropriate measures as described in Sinclair v HM Advocate 2008 SCCR 1 (at para [16]). He proceeded to enquire about the state of knowledge of the unempanelled jurors, acquired possibly through recollection of past publicity, before empanelling in the normal way. At the start of the trial he gave the jurors clear directions not to conduct internet searches and, when he came to charge the jury, he emphasised the need to proceed only on the evidence which the jury had actually heard.

[5] The complaint relates to a failure to adjourn the case for a period of 2 weeks, but it is not stated what, in practical terms, would have been achieved by such a short adjournment. It is accepted that the trial judge followed the guidelines which had been issued in Sinclair. In that case, the court had acknowledged the dangers of internet search and commented on the absence of any legislation prohibiting internet enquiries by a juror. Nevertheless, the court held that, as a generality, it was possible to manage the problem by the provision of directions at the outset of the trial and by suitably framed instructions in due course in the charge.

[6] The decision on whether it was appropriate to adjourn for a short period to allow further removal of material from the internet was a matter primarily for the judge at first instance to determine. There is no indication that, in exercising what was essentially a discretionary decision, the trial judge erred in any material way. Indeed, it is of some significance that in the Note of Appeal it is not suggested that the decision to allow the trial to proceed as scheduled resulted in any ultimate unfairness. The appeal on this ground accordingly fails.

Ground of appeal 2 - warning against self-incrimination to the witness

[7] The second ground of appeal is that the trial judge erred in warning the incriminee, namely IW, that he was not obliged to answer any questions in relation to any crime of which he had not been either convicted or acquitted. Mr W had originally been charged by the police with the murder, along with the appellant. However, he was not indicted on the murder charge but on a libel of assaulting the deceased and others at the scene. In due course he pled guilty to that at the first trial. He did not give evidence at that trial, but he did at the re-trial. The warning given had the effect that he was not obliged to answer any question implicating him in the stabbing of the deceased; that is to say the murder.

[8] The evidence, in short, revealed that, on the evening of Saline-height:200%'>
[turday, 24 October 2009, Mr W had been in the company of the appellant in a local pub. As they drove away from the pub in the appellant's car, a taxi flashed its lights to signal to the appellant, who was driving erratically, to turn off his rear fog lights. Mr W took umbrage at this and encouraged the appellant to follow the taxi. He did so until it stopped outside a house in Lochwinnoch, where the deceased's mother lived. Mr W approached the taxi and started to punch the driver. The passengers in the taxi, namely the deceased, his mother, his girlfriend and her mother, all got out. The deceased attempted to intervene both verbally and physically in order to persuade Mr W to leave the taxi driver alone. A fight then followed between Mr W and the deceased, which ended up with both of them lying on the ground in the driveway of the house. In the course of all of this, Mr W had also assaulted the deceased's mother and girlfriend.

[9] The deceased was stabbed to the heart; the wound having a total depth of approximately 18cms, consistent with the use of a knife with a blade of 17.8cms. There was another stab wound in the same area, penetrating to a depth of 7cms, and a third wound to the right arm.

[10] Evidence from the deceased's friends and family, and the taxi driver, was to the effect that at no point did Mr W have a knife during the incident. According to the deceased's girlfriend and her mother, the appellant had been near to where Mr W and the deceased had been fighting. He had then returned to the area of his car before going back to a position very close to where the deceased was lying at the end of the fight with Mr W. The deceased had been lying on his left side, so that his back and right side had been exposed to the appellant. It had been possible that the fatal blows were inflicted at this time. The appellant had been standing over the deceased and, when he had stood up from a crouching position, he appeared, according to the deceased's girlfriend, to be concealing something behind his back. She said that he had, upon enquiry, told her that this was "something sharp, something shiny". DNA evidence on a sheath recovered at the scene permitted the inference that the knife belonged to the appellant, which, in any event, he confirmed in evidence. It was shortly after the appellant had stood up, that the deceased had also got up only to collapse.

[11] In his evidence the appellant admitted that he had a sheathed knife, which he used for fishing purposes. During the incident, the appellant had tried to remove Mr W from the scene. The deceased had pulled the appellant's jacket up over his head and the appellant had pushed and punched him. He had then returned to his car and discovered that the knife was missing from the bag, which had been in the passenger footwell. He had returned to the scene, found the knife on the ground and had taken it away. He may have hidden it behind his back, but had not said anything about it to the deceased's girlfriend. The appellant accepted that only he or Mr W could have stabbed the deceased, but he said that he had not done so.

[12] At the start of his testimony, the trial judge had warned Mr W that he need not answer questions which, in effect, might incriminate him in the murder. The context for this was that, at the time, the advocate depute had explained that Mr W had neither been indicted for murder nor had he been offered immunity from prosecution. The Crown did not regard him as a socius criminis in the murder and it remained possible that he could be prosecuted. The defence did not make any comment on this at the time and no objection was made to the warning being given or to the testimony of Mr W thereafter. The trial judge reports that he took the view that Mr W was not immune from prosecution in respect of the murder having regard, in particular, to O'Neill v Wilson 1983 JC 42. As it happened, at no point did Mr W decline to ask questions on the basis that he was not obliged to incriminate himself.

[13] It was submitted that, notwithstanding the appellant's position at trial, the trial judge should not have given the witness a warning because, by operation of law, he was immune from prosecution, having been called as a witness and having been a participant in the crime (MacMillan v Murray 1920 JC 13; McGinley and Dowds v McLeod 1963 JC 11; O'Neill v Wilson 1983 JC 42; and Cochrane v HM Advocate 2002 SCCR 1051). Had he not been warned, the defence would have been able to say that his evidence was tainted because he had done a deal with the Crown to avoid prosecution. Alternatively, if he had been told that he was immune, his evidence might have been different, even to the extent of admitting involvement in the stabbing. As it was, his evidence might have been tailored to avoid prosecution in the future.

[14] It is clear from O'Neill v Wilson, (supra, LJC (Emslie) at pp 49 and 50), and from Cochrane v HM Advocate, (supra, LJC (Gill) at para [3]), that only a socius criminis obtains immunity by virtue of giving evidence against an accused person. A socius criminis is an associate or accomplice in the commission of the crime (see eg Traynor, Latin Maxims 581). He is a person who gives evidence against an accused person whilst admitting that he has acted art and part in the crime libelled. The rule that such a person is immune from prosecution is derived from a statute of George II and was, before being applied to other crimes, designed to ensure that a cattle thief could testify against his partners in crime (ie for the Crown) without himself being "liable to prosecution on account of his accession to such offence" (O'Neill v Wilson (supra), LJG (Emslie) at 47 citing McGinley and Dowds v McLeod (supra), LJG (Clyde) at 16).

[15] The appellant and Mr W were not, on any view of the Crown evidence, socii criminis and the prosecution was not brought on the basis that they were. According to the witnesses adduced by the Crown, including Mr W, at no point did Mr W have a knife. The murder was committed after his participation in the assault on the deceased had ceased. The Crown did not call Mr W as a participant in the murder but as a witness to its circumstances. Mr W did not become a socius merely by virtue of the incrimination and could not, for example, have secured immunity from prosecution (even if he had been a socius) by giving evidence for the defence. Automatic immunity is given only to socii called by the Crown as participants, along with the accused, in the crime charged. For this reason alone, the appeal against conviction on this point must fail. In any event, since the witness proceeded to give evidence uninhibited in the ordinary way, the giving of a warning does not seem to have had any practical effect.

[16] The giving of the warning is designed as a protection to the witness, rather like the police caution. If it is not given in a situation where the witness does not have immunity, any testimony which he gives which does incriminate him may be ruled inadmissible in a trial against him for the same offence. It is not a device intended to provide a co-accused with a reason to criticise his credibility, should he proceed to give evidence against that co-accused. Immunity from prosecution, whether created by operation of law or the express agreement of the Crown, may afford a co-accused such a reason but it does not arise from the mere fact that a witness is informed of his rights. The proposition that Mr W would have given different evidence is entirely speculative. The court was given no cogent basis upon which it might be said that the warning, or indeed the lack of immunity, might have altered his testimony. The fact that the appellant was not able to say to the jury that Mr W's evidence was tailored by his having been granted immunity is because his evidence was not so tainted. The appellant was able to say that, in any event, his evidence was designed to avoid prosecution and the jury would have been entitled to take that into account in assessing Mr W's evidence.

[17] The court, accordingly, does not consider that there is any merit in this submission. As a subsidiary point, it was maintained that the trial judge ought to have given the jury a "cum nota warning" (Docherty v HM Advocate 1987 JC 81) on the basis that Mr W was a socius criminis. It was accepted, however, that this was predicated on him being a socius criminus. Since the court does not consider that he was, this ground must also fail.

Sentence

[18] The appellant maintained that there were no aggravating features to justify a departure from the guidelines set out in Boyle v HM Advocate 2010 JC 66, whereby the punishment part, in relation to murders involving knives, should normally be in the region of 16 years. It was emphasised that this stabbing, as distinct from that in Boyle, had not been premeditated. The appellant had no previous solemn convictions, nor had he served any custodial sentence. He only had one conviction for violence in 2001, for which he had received a community disposal.

[19] The trial judge, and presumably also his predecessor at the earlier trial who had selected the same period, considered that the infliction of the 2 stab wounds to the side of the deceased, one of which had penetrated his heart, having travelled 18cms into his body, and inflicted when the deceased was lying on the ground and essentially defenceless, amounted to "a horrifying and cowardly assault". The appellant had not been acting as a peacemaker, but had calmly gone to his car, fetched his knife and used it to inflict the wounds. He had shown no concern for his victim and no remorse. He did, also, have 2 germane previous convictions, including one for possession of a knife and one for assault.

[20] In his report, the trial judge describes the deceased as having been "a brave and decent young man who had done nothing at all and lost his life for no reason whatsoever. He had sought to protect a taxi driver who was getting assaulted. His loss has had a profound effect on his mother and sister and his girlfriend and her family, both emotionally and in practical ways".

[21] Having regard to all the circumstances but, in particular, the description of this assault and the effect that it has had on the relatives of the deceased, the court is quite unable to say that the judge's selection of a punishment part of 20 years was excessive. The appeal on sentence is also, therefore, refused.