The proposed evidence of Mrs Carlton was crucial to the reference (Campbell v HM Adv, supra, at pp. 145ff). Although it related to charge (9), it had implications for the Crown case on charge (15).
This court accepted that Love's affidavit contained new evidence that was capable of meeting the tests set out in section 106 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act); but, by a majority, the court held that the proposed evidence of Mrs Carlton was not capable of supporting the requirement that there should be a reasonable explanation why Love had not given evidence at the trial on the lines of his affidavit (ibid, at pp. 158-159; 180-181).
VThe present references
The Commission's approach
These references arise, in the cases of Campbell and Steele, from an entirely new matter, namely the reports obtained by the Commission from Professor Brian Clifford and Dr Peter French on the police evidence of the statements allegedly made by Campbell and Steele. Professor Clifford has been Professor of Cognitive Psychology at the University of East London since 1996. He is an expert of international renown in the field of psycho-linguistics as applied to memory. He has written extensively on the subject. He advises on matters of forensic psychology. Dr French is an expert in forensic linguistics. In general, these experts conclude that it is unlikely in either case that all of the officers concerned could have recalled the relevant statement, and noted it in their notebooks, in virtually identical words. This
conclusion is based on their own experiments, on their professional experience and on the scientific literature.
The Commission's reference in Campbell's case is confined to charge (15). The Commission considers that the terms of the reports by Professor Clifford and Dr French are sufficiently strong to cast doubt on the evidence of the police officers who arrested Campbell. Its decision is "based upon its view that had the jury rejected the evidence of Campbell's arresting officers, it appears that there would have been insufficient evidence to convict him of murder" (Statement of Reasons, p. 95). It is surprising that the reference should be confined to charge (15), because if doubt is cast on the police evidence of Campbell's alleged statement, that doubt affects the conviction on charge (9) also.
The Commission has concerns about all three sources of evidence against Steele. It considers it arguable that Ferguson's evidence was not evidence against Steele at all. It is also of the view that the manner in which Love's evidence against Steele was presented to the jury may have led them erroneously to believe that they could convict even if they did not accept this evidence as corroboration of Steele' s alleged admission to the police (Statement of Reasons, p. 106).
In the case of Gray, the reference is concerned only with the possibility that the professional representation of Gray may have been defective by reason of the failure of Gray's defence team to lead the evidence of Mrs Carlton incriminating Love (Statement of Reasons, pp. 63-66).
The Commission is to be commended for the thoroughness of its investigation and for the excellence of its analysis of the issues. In the light of these Reports and
the submissions of counsel, we accept that it was in the interests of justice that each of these references should have been made.
The additional grounds of appeal
Proceedings of this kind fall to be treated as an appeal (Higgins v HM Adv, 1956 JC 69, at p. 74; Kilpatrick v HM Adv, 1992 JC 120, at p. 123). The court is not confined to the scope of the reference itself (Beattie v HM Adv, 1995 SCCR 93). The court can entertain any ground of appeal that may be tabled, even one that has been decided already (Campbell v HM Adv, supra; Boncza-Tomaszewski v HM Adv, 2000 SCCR 657, at pp. 664-665). Counsel for Campbell has widened his submissions to include an appeal against conviction on both charges.
In addition to relying on the new evidence, counsel for Campbell and Steele submitted that the trial judge misdirected the jury in his presentation of the evidence; that he misdirected them on the evidence of Granger; and that the court should hear new evidence from Love and Mrs Carlton, being the evidence offered at the 1996 reference. Counsel for Steele also submitted that there was insufficient evidence to entitle the jury to convict him, and that the trial judge misdirected the jury on the evidence of Ferguson. The solicitor advocate for Gray adopted the points made by the Commission in his case, which are in essence an Anderson ground, and submitted that the trial judge misdirected the jury on the evidence of Love and of Granger. He did not rely on the new evidence, which, as the Commission observes, is of limited significance to Gray's case; nor did he dispute that there was a sufficiency of evidence to warrant Gray's conviction.
VIThe evidence of Professor Clifford and Dr French
On 20 February 2003, after a hearing on the point, we rejected a submission for the Crown that the proposed evidence of Professor Clifford and Dr French was inadmissible on the ground that it was opinion evidence on the credibility and reliability of the police witnesses. We held that the proposed evidence was evidence of the ability of witnesses, in the circumstances spoken to at the trial, to recall a statement accurately and of the likelihood that several witnesses to the same statement could recall it in almost identical terms. That was relevant and admissible evidence of fact that could have a significant bearing on the credibility of the police witnesses. We gave leave to the Crown to lead evidence on the subject.
We have now heard the evidence of Professor Clifford. He was adduced as a witness on behalf of Campbell, but in reality on behalf of Steele also. Professor Clifford spoke to the findings of his experimental studies on which he reported to the Commission. The terms of Dr French's reports were agreed. Dr French was not called on behalf of Campbell or Steele, but counsel for Campbell and Steele relied on his reports to the extent that they generally supported Professor Clifford's conclusions. The advocate depute did not in the event call Dr French, but he referred to his reports and submitted that they did not cast doubt on the convictions. The advocate depute put to Professor Clifford certain criticisms of his methodology and conclusions. In his submissions, he criticised Dr French's Report on similar points. He led no evidence in rebuttal of either of them.
We have set out the almost identical versions of the 24-word statement imputed to Campbell by the four officers who arrested him. The Commission asked Professor Clifford the following questions:
"(1)How likely is it that all four officers were able to note the remark in such similar terms?
(2)What is the likelihood that all four officers were able to note the remark in such similar terms in the absence of any comparison or collaboration whatsoever between them?"
In the case of Steele, the Commission asked Professor Clifford to consider two of the statements allegedly made to the police by Steele. The first was the statement allegedly made in the house, "I thought you would have been here before this". The second was the statement allegedly made in the police car, "I'm no' the one that lit the match" or, as DI McKillop noted it, "I am no' the one that lit the match". The Commission asked Professor Clifford the following questions:
"(1)How likely is it that all four officers noted Steele's comment in the car in such similar terms - or would the memories of those officers who did not note the statement until their arrival at the police station be affected by the time lapse stipulated?
- How likely is it that all four officers noted Steele's comment in the house in such similar terms or would the memories of those officers who did not note the statement until their arrival at the police station be affected by the time lapse stipulated?"
We have disregarded the questions put to Professor Clifford in both cases relating to the reliability of the police officers' evidence in relation to these statements. In our view, that is not a matter for expert opinion.
Professor Clifford said that most cognitive psychologists agreed that there was a need to postulate some capacity limitation on immediate short-term memory and that the upper limit was set at about seven to nine discrete items. Beyond that, the meaning of statements was retained but not the actual words, unless the individual was an actor. The short sentences imputed to Steele might be capable of immediate recall verbatim, but the longer statement imputed to Campbell would not. It would be subject to the phenomenon of semantic processing of sentences that had been demonstrated by psycho-linguistic research.
Professor Clifford carried out four experimental studies. The first was designed to test the capacity of individual subjects to retain and retrieve immediately heard utterances of different lengths. The second study was carried out for the same purpose, but with a sample of participants who were Scots. The third study tested the effect of delay upon memory of a heard utterance. The fourth study tested the participants' ability to recall an eight-word sentence after a lapse of five, ten or fifteen minutes. In each study, the participants had to listen to taped statements.
Since the Crown relied at the trial upon two statements in particular, Campbell's alleged statement on arrest and Steele's first alleged statement in the police car, we shall concentrate on Professor Clifford's studies in relation to them.
The first and second studies
In the first study there were 57 participants, both male and female, with a mean age of 31. They were drawn from a wide range of occupations both private and public. All of them were English and English was their first language. They were divided into two groups. One was given relevant information. The other was not. The purpose of having an informed group was to simulate the knowledge that the police officers had when they arrested Campbell and Steele. The participants in the informed group were told that arson and discharge of a shotgun were involved, and that the experiment related to a real life criminal case at the heart of which was the possibility of a miscarriage of justice centred on the reliability of memory for sentences. The participants in the uninformed group had no idea what the topic would be. All the participants were presented with the statements one at a time and in each case were requested to write the statement down immediately word for word. They were told that the utterances were to be spoken by a Scotsman, whose accent might present a difficulty for them, and that they would have to pay close attention to what he said. The source voice spoke the key sentences after extensive practice so that he had them word perfect. He had a Glasgow accent. The mood in which he spoke them was intended to mimic surprise, indignation and resignation, which was thought to be the way in which they had been uttered.
None of the participants could recall all 24 words of Campbell's alleged statement. The majority of the informed group could recall only 40% of the words. The majority of the uninformed group could recall only 30%. The majority of the participants could recall only about 70% to 80% of the eight words of Steele's statement. It made no significant difference whether they were in the informed or the uninformed group.
These results suggested that verbatim recall of the complete Campbell statement of 24 words was impossible. While some individuals could recall verbatim the short sentences that they had heard up to three seconds before, the majority could not. Verbatimrecall of the first of Steele's statements in the car was therefore possible; but there remained the question whether the short sentence could be recalled by several hearers in identical terms.
Having considered the results of the first study in the light of psycho-linguistic knowledge, and having compared them with the police evidence, Professor Clifford concluded that it was "very improbable" that all four police officers who noted Campbell's statement would have identical, non-conferenced verbatim recall of it.
Since it was to be assumed that all of the police officers who noted the statements were Scottish, Professor Clifford decided to repeat the study with a sample of Scottish participants. All of these participants were informed in broad terms of the purpose of the study. According to Professor Clifford, this second study stacked the cards in favour of results more comparable with the police officers' recall ability.
In this study there were 74 participants. They included firefighters, nurses, factory workers, a karate group and persons in other occupations chosen at random. Among them there were 14 police officers. All the participants were from Perthshire. The results were closely similar to those found in the first study. There were no significant differences in the data. The low verbatim recalls found in both studies were considered not to be explicable by the linguistic difference between the two sets of participants. Professor Clifford concluded that the low verbatim recalls resulted from the difficulty of the task.
In these two studies, the range of recall for long sentences was wide, but no participant even came close to the apparent recall ability of the arresting police officers. Professor Clifford thought that the difficulties were caused by the structural constraint of the sheer length of the sentence rather than by individual differences in the size of memory span. Both of the long sentences used, one of which was Campbell's 24-word statement, exceeded the most capacious estimates of an individual's short-term memory ability.
The fact that none of the participants equalled or even came close to the recall ability seemingly achieved by the arresting police officers in these cases raised serious doubts in Professor Clifford's mind about the officers' evidence.
In the second study, the police participants performed numerically better than some non-police groups, but the numerical differences were not statistically reliable. There was therefore evidence within the data, according to Professor Clifford, that policemen do not perform any better in terms of accuracy of recollection than other members of society. That was supported by other published data. He concluded:
"Given the extant publications and the current results, the memory performance that apparently was exhibited by the police officers in the case under review must be seen as truly remarkable. So remarkable in fact as to be doubtful."
As an extension of these two studies, Professor Clifford also carried out a semantic analysis of the statement imputed to Campbell. He said that when sentences exceed short term memory, it is the semantic units constituting the statement that are encoded, stored and retrieved. The Campbell statement comprised four idea units; namely, shooting at van windows; fire at Fat Boy's; a frightener; and going too far. It was found that not all semantic units were equally well recalled. The most poorly recalled were those with the greatest criminal significance, namely the shooting and the fire. On a semantic analysis, whether the studies were taken singly or in combination, the same pattern appeared. The semantic study was based on a more lenient criterion of recall, yet even in this study no participant in the combined sample of 131 could recall all four semantic units.
Professor Clifford concluded that in the face of these data the probability that any random four or random two officers could recall a sentence of 24 words in identical terms was "infinitesimal." In answer to the questions put to him by the Commission, he concluded that the findings of the first and second studies, taken together or separately, strongly suggested the unlikelihood that in Campbell's case all four officers could note the utterance in such similar terms, and indicated clearly that to obtain such similar recalls, each officer could not have been acting alone and independently. The degree of similarity in the statements and in the evidence of the four officers could have resulted only from comparison or collaboration.
The third study
The third study related to the alleged statement of Steele, "I'm no' the one that lit the match." It was designed to assess the probability of its being accurately recalled five, ten or fifteen minutes after it was said. There were 20 participants from England and 20 from Scotland. There were 21 males and 19 females, with a mean age of 28 years. The same set of tapes was used in this study as in the previous two. All of the participants were informed about the background to the study and the key elements of arson and the discharge of a firearm, and about the "current plight" of Campbell and Steele. Professor Clifford described the results of this study as "clear and somewhat stark." Recall of a fairly short sentence was found to be very poor after a delay of only five minutes. Only two participants succeeded in recalling it verbatim. 12 recalled it correctly in the semantic sense, but not verbatim. 26 failed to recall anything.
The word for word recalls of the Steele statement by three of the arresting officers after a delay of at least ten minutes, and possibly as long as fifteen, gave Professor Clifford cause for concern. On the basis of his third study, he could say that identical verbatim delayed recall was "not readily available to humans".
In the light of the findings of the third study, Professor Clifford concluded that the verbatim similarity in the police officers' noting of Steele's first statement in the police car was "an extremely unlikely occurrence." The fact that all three of the officers who noted it at the police station managed to recall it verbatim was "quite remarkable." He said that it was hard to escape the conclusion that these similarities were "due to other than independent retrieval of a stored memory of a heard utterance."
The fourth study
Professor Clifford undertook a fourth study, to test recall after specified intervals of time. This study, like the third, concerned only Steele's first statement in the car. Its purpose was to examine whether verbatim memory for an eight-word utterance was possible after delays of five, ten or fifteen minutes under the conditions spoken to by the police officers. For this study there were 50 female and 26 male participants, with an average age of 291/2 years, who were undergraduates and professional people.
Two tapes were prepared. One had the eight word statement, followed by a long caution, followed by the words "I'm saying fuck all else." The other had the same statements, but with a short caution in between. The participants were tested in groups of four to simulate conditions in the police car. They were told that they would be presented with a number of utterances on tape as part of an important experiment. Their task was to remember only the first utterance that they heard and to be prepared to write it down later word for word. They were told that when the tape was stopped they should sit quietly and await further instructions. The first instruction was repeated. The tape was then played and the participants sat in silence for either five, ten or fifteen minutes. At the end of whichever period they were given, they were instructed to write down, if they could, word for word, the first utterance that they had heard.
Only one participant recalled the critical sentence verbatim. That participant was in the ten-minute delay group who heard the short caution. The results showed that participants could recall verbatim only about half of the words of the critical utterance and that recall was delay-dependant. The participants could retain the semantics of the sentence fairly well, irrespective of the time delay and the length of the intervening utterances; but as delay increased, so did error in recall.
Professor Clifford considered that it was extremely unlikely that three police officers could independently recall the alleged utterance in identical or near identical terms. That opinion, he said, was now based on the experience of a total of 244 participants who had heard the critical sentence and had recalled it either immediately, in the case of 151 of them, or after some delay, in the case of the others. The data showed that the individual does not normally process a sentence by storing it verbatim even when he is specifically instructed to do so, as in the first three studies, or when, because of its importance, he intends to remember it for later noting, as in the case of the arresting officers.
Whether this was new evidence
Professor Clifford also dealt with the question whether evidence of this kind could have been obtained at the time of the trial. It is our impression that if it had been available then, it is unlikely that the court would have admitted it; but since the advocate depute did not dispute that this was new evidence, we need not consider the question further.
The Crown criticisms of the new evidence
The advocate depute compared Professor Clifford's studies unfavourably with some of those of Dr. French. His principal criticism was that the information provided to the participants fell far short of the information that the police had when they arrested Campbell and Steele. The experiments could not replicate the significance which the statements had for the police officers. This was one of the most important cases that they would have dealt with. They knew that they would have to remember the statements. It was wrong to assume that the arresting officers started to note Campbell's statement only after he completed it. There was no warrant for the assumption that it was made as one statement of 24 words. It could be regarded as two sentences. Moreover, there was no basis on which to make any assumption about the speed at which it was spoken. In the second experiment, the participants came from Perthshire. They would not have a Glaswegian accent. The evidence of Professor Clifford and Dr. French was not so significant that the convictions of Campbell and Steele should be regarded as miscarriages of justice. Their evidence was not sufficiently relevant and cogent in relation to the evidence at the trial to satisfy the test laid down in Cameron v HM Adv (1991 JC 251) and Kidd v HM Adv(2000 SCCR 513).
(1)The evidence of Professor Clifford and Dr French (the Campbell and Steele references)
This evidence raises the principal issue on which these references have been made. Before we even consider it, we are surprised by certain aspects of Campbell's alleged statement, and the circumstances in which it was made. It seems remarkable that an experienced criminal like Campbell should have said anything at all when cautioned, let alone have made so incriminating a statement, and that in answer to a caution relating to the shooting, he should have volunteered an incriminating admission about the murders. If Campbell made such a statement, it is remarkable that he was not asked to authenticate it, by signing or initialling the note of it, in one or more of the police notebooks. Perhaps the most remarkable feature of all is that this crucial statement, which was a breakthrough in the police enquiry, was not reported by DI McCafferty to D Supt Walker until the following day.
In Steele's case, too, the police evidence is surprising. It is remarkable that Steele too should have spontaneously volunteered such an incriminating statement, that he should have done so in a police car on his way to a police interview, and that only the driver of the car should have noted it, while the senior officer, whose hands were free, did not.
We are sceptical about this evidence even without the benefit of Professor Clifford's conclusions; but that is merely our own reaction. We acknowledge that all of these points were put to the jury, who nevertheless convicted Campbell and Steele unanimously. We need not pursue the point further, because we consider that we can decide the Campbell and Steele references on the basis of the new evidence and of certain directions of the trial judge.
The reports of Dr French
Dr French did not give evidence. His analysis was therefore not tested. For that reason alone, we consider that his study carries much less weight than that of Professor Clifford. Moreover, Professor Clifford has expressed reservations about Dr French's methodology and about the small size and unreliability of the samples that he used. Nevertheless we think that Dr French's work is of value to the limited extent that his findings and conclusions point in the same direction as those of Professor Clifford.
The evidence of Professor Clifford
The Crown has had since November 2001 to consider the substance of the new evidence. It has had a year since we held that the new evidence was admissible, to canvass expert advice on it. It has not produced any expert evidence to the contrary.
We have to consider whether the new evidence is capable of being regarded by a reasonable jury as both credible and reliable (Kidd v HM Adv, supra, at para ). In the making of that judgment, the quality of the new evidence and its cogency are of critical importance. The evidence is based on established theory and on experimental proof. It is uncontradicted, both as to theory and method.
Professor Clifford's reasoning appears to be logical and his conclusions appear to be cogent. Nothing put to him on behalf of the Crown persuades us that we should not accept his key conclusions. We accept that there is substance in the advocate depute's comments on the limitations of his attempt to replicate the conditions in which the alleged statements were heard. It was impossible fully to replicate those conditions, but in our view Professor Clifford achieved a reasonable proxy for them. Moreover, we are impressed by the robustness of his results.
On that view, we consider that the evidence is highly relevant to the crucial issue in the trials of Campbell and Steele.
We then have to consider what effect the evidence would have had on the course of the trial. We have to decide that question in the knowledge that without the evidence of the statements, the Crown had no case against either Campbell or Steele.
In our opinion, if the new evidence had been given at the trial, the trial judge could not have directed the jury as he did. The contention that the statements were fabricated was crucial to the defence case; but the defence had no independent evidence to support it. The trial judge emphasised that the defences for Campbell and Steele involved an attack on the integrity of the police. He asked the jury to consider what evidence there was to support it. He emphasised that the conflict lay between the police officers and the defence witnesses, including the accused; and that if the jury were to accept the defence case, it would follow that a large number of detectives had engaged in a conspiracy. In our view, it is hardly surprising that, on the evidence before them, the jury resolved the conflict in favour of the Crown.
The alleged statements were recorded in the arresting officers' notebooks, in their police statements, and no doubt in the Crown precognitions. For those officers, therefore, there could be no retreat from the statements. If the evidence that we have now examined had been available to the defence, there would have been independent evidence from a reputable source that undermined the crucial evidence on which the convictions of Campbell and Steele depended.
In our view, any jury hearing Professor Clifford's evidence would have assessed the police evidence in an entirely different light. Moreover, it is obvious that while that evidence would have been more convincing in relation to Campbell's alleged 24-word statement, any doubt that it cast on that statement would have carried over to the alleged statement of Steele.
In our view, the new evidence is of such significance that the verdicts of the jury, having been returned in ignorance of it, must be regarded as miscarriages of justice (cf Kidd v HM Adv, supra).
- Sufficiency of evidence (Steele's ground of appeal)
In his charge the trial judge made no reference to Love's evidence in his analysis of the case against Steele; but in his report to the appeal court in 1985, he relied on Love's evidence as a material part of the case against Steele.
In giving the Opinion of the Court in that appeal, Lord Justice Clerk Wheatley dealt with this point by saying that Love had given evidence "about a conversation among a party of people, of whom [Steele] was one, which establishes that [Steele] was a member of a group discussing plans for the commission of the offence and was accepting his involvement in what was being discussed (Opinion of the Court, p 2)." Later, the Lord Justice Clerk said that the evidence of Steele's listening to the conversation between Campbell and Gray and saying "aye, aye" was not just evidence of a confession, but was "independent evidence of the appellant's participation in a plan to commit the offence which subsequently was carried out." That, we think, was an overstatement. That evidence was consistent with an innocent interpretation, so far as Steele was concerned. Nevertheless, it was also consistent with his being involved in the plan. So long as the latter was a possible interpretation, as in our view it was, the jury were entitled to take the evidence into account (HM Adv v Fox, 1998 JC 94). That evidence and the evidence of the police constituted a sufficiency of evidence. We therefore reject this ground of appeal.
- Misdirection (the Campbell and Steele references and Gray's ground of appeal)
(a)The trial judge's presentation of the evidence
Counsel for Campbell and Steele submitted that the directions of the trial judge inverted the onus of proof; trespassed on the province of the jury; showed a bias in favour of the credibility of the police witnesses; and undermined the defence cases.
The criticisms now made of the trial judge's charge in these respects were made at the hearing on the Secretary of State's reference. On that occasion Lord Justice Clerk Cullen, as he then was, was the only member of the court expressly to deal with the matter. He rejected the submission (Campbell v HM Adv, supra, at p. 143A-E).
Counsel for Campbell submitted that since a Commission reference was excepted from the scope of section 124(2) of the 1995 Act, the court's previous decision on the question was not conclusive. He also submitted that since, in the Secretary of State's reference, the court held that it could entertain an issue that had previously been determined by the court, so long as it was not a matter of interpretation of the criminal law (Campbell v HM Adv, supra, at p. 135C-G), we were not precluded from considering the question. In any event, the alleged misdirections in these respects had now to be seen against the background of the new evidence and the new ground of appeal relating to misdirection on the question of onus. The advocate depute did not dispute these submissions. In our view, it is right that we should consider these questions again, since we have extensively examined the trial evidence with the assistance of the new evidence that we have discussed and in the light of more focused grounds of appeal.
In our opinion, the trial judge did not materially misdirect the jury in his comments that the police, the procurator fiscal and the Crown authorities had "accepted" Love's story (at p. 61D-E). In the circumstances in which Love came to give evidence for the Crown, it was in a sense true to say that the police, the procurator fiscal and the Crown had accepted Love's story. His was the account on which the prosecution was based. The defence approached his evidence on the same footing. If one reads the charge as a whole, it becomes clear that the trial judge repeatedly emphasised that Love's credibility was crucial and that the assessment of it was a matter for the jury. In our view, the trial judge did not pre-empt the jury's assessment of Love's credibility.
We do not accept that the trial judge trespassed on the province of the jury in his treatment of charge (9) when he described Love's evidence, if true, as "powerful and damning" (at p. 62). If Love's evidence were true, "powerful and damning" would be a fair description of it. Neither the Crown nor the defence can have doubted that. We cannot see how that can be considered to be a misdirection.
Comments such as the trial judge made about the defence criticisms of the police (at p. 28C) were not uncommon twenty years ago; but we have to decide this case by the judicial standards of today. The essence of a judge's charge is the giving of directions in law. In strict theory, the judge need say nothing about the facts. But in modern practice, in all but the simplest cases, he should refer to the main points of the evidence on which the Crown and the defence rely. In that way, he can give some context to his directions on legal concepts such as corroboration. But whenever the judge refers to the evidence, he should do so with restraint. In this case, the judge not only referred to the defence in forthright terms, but went on to warn the jury that if they accepted the defence cases they would be accepting that there had been a police conspiracy "of the most sinister and serious kind." That sort of comment was appropriate for the advocate depute's speech; but it was perhaps inopportune in the charge. Nevertheless, it did not misrepresent the defence. On the contrary, as we can see from the judge's references to the speech of counsel for Campbell, that was a central point in the defence. In our view, the judge's comments were not a misdirection.
Counsel for Campbell and Steele submitted that there was a misdirection on onus (at pp. 28C-29B) when the trial judge said that it was only if the jury accepted the evidence of the accused that they could accept the defence submission, and that it was for the jury to decide which account they preferred. We do not agree. Those directions must be seen in their context. At the outset of his charge the trial judge gave the standard directions on onus and on reasonable doubt. Later, in the passage complained of, he dealt with the specific issue of the conflict between the evidence of the police and the evidence of the accused about the statements. In that context, he was quite right to say that it was only if they believed the accused that they could accept the submission of counsel for Campbell that the police were liars and bullies. It is obvious that on that issue it was for the jury to decide which account they preferred. We reject this submission.
(b)The direction on Granger's evidence
The trial judge directed the jury that Granger's evidence did not assist them at all. He said that the same applied to Reynolds. In his Report to the appeal court, he said that this direction "was intended as a direction to the jury to disregard the whole of the evidence of the witnesses so far as charge (15) was concerned" (at p. 22). In our opinion, that direction was inadequate.
Campbell and Steele took similar points in the 1985 appeals. Campbell argued then that in relation to both Granger and Reynolds the trial judge misdirected the jury by failing to warn them that if they did not believe a witness' denial of a point of evidence put to him, they were not entitled to infer that the opposite was true. Lord Justice Clerk Wheatley referred to the passage that we have quoted and said
"To suggest, in the face of such clear directions that nothing could be taken out of the evidence of these witnesses to implicate the appellant, that a further direction in the terms desiderated was necessary to make the point clear to the jury, reeks more of an insult to their intelligence than a requirement for their proper guidance. We reject this complaint out of hand" (at p. 7).
Counsel for Steele argued then that the trial judge should have directed the jury that the contents of the statements of Granger and Reynolds were not evidence against him, and that the jury should put the contents out of their minds. Counsel for Steele founded on Paterson v HM Adv (1974 JC 35). In that case, the mother of the accused denied that she had given a statement to the police that incriminated him. The Crown led two police officers who spoke to the terms of the statement. It was held that the trial judge had misdirected the jury in failing to tell them that the evidence of the police officers was not evidence against the accused.
The appeal court, referring to the same passage in the charge, distinguished Paterson v HM Adv on the ground that in this case the Crown had not led evidence of Granger's statement. We are not convinced that that was a distinction of any great significance since after the advocate depute's questions to Granger about his statement, the jury were as well informed of its contents as they would have been if a police witness had read it out. Lord Justice Clerk Wheatley continued as follows.
"We not consider the case of Paterson to be apposite here, nor do we consider that the direction called for was necessary in the circumstances, having regard to the manner with which the judge dealt with them. For good measure, the judge had already pointed out to the jury that any statement made by one accused inculpating a co-accused made outwith the presence of that co-accused could not be evidence against that co-accused. Counsel for the appellant submitted that the judge had confined his direction to the situation where the statement was made by one accused involving another, and here these witnesses were not co-accused. Even on the basis that the principle in law therein involved is confined to co-accused, Granger was really in the position of a co-accused. The accused libelled in charge 15 are charged with acting along with Granger in its commission, and when he was being interviewed by the police who took his statement he was very much in the position of a co-accused and equally liable to attempt to exonerate himself at some one else's expense. It follows from this, of course, that nothing of evidential or corroborative value can flow from this chapter of the evidence, nor was anything of such a nature sought by the Crown."
In our opinion, these comments missed the point. While the contents of the statement were not evidence against Campbell or Steele, the putting of its contents to Granger created a serious risk that if the jury disbelieved his denial that he had made the statement, as they well might, they would conclude that the account of events put to him by the advocate depute represented the truth.
In the present case, counsel for Campbell and Steele have confined the submission to the question of Granger's evidence. In our opinion, their submissions are well founded. On a matter of such sensitivity the trial judge was obliged, in our view, to direct the jury that Granger had said nothing to incriminate Campbell or Steele, and that they must not take into account the advocate depute's questions to Granger as to the contents of the statement, or the police evidence as to the making of it, when they were considering the case against Campbell or Steele. The failure of the trial judge to direct them in such terms was, in our opinion, a material misdirection. In the circumstances of this trial, that misdirection constituted a miscarriage of justice in relation to Campbell and Steele. It did not constitute a miscarriage of justice in relation to Gray, because by then he had been acquitted of this charge.
- Misdirection on Ferguson's evidence (the Steele reference)
The trial judge left the jury to make what they could of Ferguson's evidence. Counsel for Steele submitted that it was not clear what Ferguson's evidence was and that, in any event, it related only to what Moore had said. This point was raised by Steele in the 1985 appeal. On that occasion Lord Justice Clerk Wheatley said the following.
"Counsel for [Steele] submitted that while it is for the jury to assess the value of a witness' evidence, where a witness cannot make up his own mind about what he heard it is for the judge to do something to clear it up. That seems to be exactly what happened here. Between them the advocate depute and the judge seem to have extracted from the witness his difficulty in using the right personal pronoun in the right place, but, with that explanation, it was for the jury to make up their minds on what the witness was in effect saying and what value should be attached to it. That being so, there is no reason why the jury should not have been allowed to consider Mr Ferguson's evidence and, in doing so, been entitled, in the light of all the other evidence in the case, to put on it the evidential significance against [Steele] which the Crown desired" (at p. 7).
We do not agree. In our opinion, the trial judge should have directed the jury that Ferguson's evidence was not evidence against Steele. Whatever interpretation could be put on his evidence, the key point was that Ferguson spoke only to what he heard Moore say. His evidence in re-examination that he thought that both were to get the £300 was merely his interpretation of Moore's words. It was not evidence against Steele. The trial judge's approach was therefore a material misdirection. The case against Steele was at best so thin that we cannot exclude the possibility that the jury considered Ferguson's evidence, and not that of Love, to be corroboration of the alleged statement to the police. In our view, this misdirection caused a miscarriage of justice.
(5)Proposed new evidence of Love and Mrs Carlton (the Campbell and Steele references)
This ground of appeal is to the effect that this court in its judgment on the Secretary of State's reference (Campbell v HM Adv, supra) erred in its refusal to admit the new evidence of Love. Counsel for Campbell accepted that this ground of appeal raises nothing new. It merely asks us to reach a different conclusion on exactly the same point. Counsel for Campbell suggested that if we were to take a different view from the court which heard the 1996 reference, we should convene a larger court in order to consider the point.
In our view, the opinions of the majority of the court in the 1996 reference were correct. We refer to and adopt their reasons. Since nothing has changed in the interim, we reject this ground of appeal.
(6)The Anderson appeals (the Campbell and Gray references)
The Commission considers that of all of the possible tactical reasons for not calling Mrs Carlton as a witness for Gray, none would appear to be immediately convincing. In its view, the inconsistencies in her account, to which we have referred, did not necessarily indicate her lack of credibility. Even if her evidence had been heard and believed, the jury would still have been entitled to convict Gray of assault to severe injury on an art and part basis, but in that event the conviction would have resulted in a shorter period of imprisonment.
Campbell and Gray were separately represented by counsel at the trial, but were represented by the same solicitor, Mr Robert T McCormack. Mr McCormack was cited as a witness for Gray and, in consequence of that, could take little part in the conduct of the defence. He was represented in court by another agent.
Mrs Carlton was precognosced and cited by Steele's solicitor. She was also cited on behalf of John Campbell and was on the list of witnesses for Lafferty. Although not cited on behalf of Campbell or Gray, counsel for either of them could have called her. Mrs Carlton's precognition for Steele identified Love as having fired the shots. She was the only known source of that evidence. If she had given it, it would have undermined Love's credibility completely.
It is not disputed that there was co-operation between the defence teams. Whether or not Mr McCormack knew it, counsel for Campbell and Gray had seen the precognition that Mrs Carlton gave to Steele's agents. Counsel for Gray put to Love the substance of Mrs Carlton's account of the shooting.
Mr McCormack, when interviewed by the Commission, could not remember why Mrs Carlton was not called. He suggested that perhaps it was because she was changing her story. In his statement to the Commission, he confirmed that Mrs Carlton was not precognosced. He said that he was not aware of her existence at the time of the trial, and that her evidence incriminating Love did not exist at the time of trial, so far as he was concerned. Having seen the terms of the precognition that she gave to Steele's agents, Mr McCormack agreed that her evidence was important to Gray's defence. He also said that the notice of incrimination lodged on Gray's behalf was probably based on information given by Gray himself or on "general street wisdom."
Counsel for Campbell submitted that those representing Campbell had a duty to precognosce Mrs Carlton and to cite her as a witness, rather than to put the substance of her statement to Love in cross-examination. No lawyer acting reasonably and responsibly on Campbell's behalf could have failed in that duty. He accepted that on the information before the court, he could not exclude the possibility that the calling of Mrs Carlton was carefully considered by those representing Campbell and, for sound reasons, rejected.
The solicitor advocate for Gray submitted that any solicitor professing normal competence would have had Mrs Carlton precognosced, even if he was unaware of her proposed evidence; and that once it was known that she had given a precognition to Steele's solicitor on the lines that we have described, it was important that she should be precognosced specifically from the standpoint of Gray. Once counsel for Gray had cross-examined Love, it became vital, in view of Love's denials of the allegations put to him in cross, that Mrs Carlton should be led. Without her evidence, there was nothing to support the special defence. After Love gave evidence there was ample time for Mrs Carlton to be precognosced and cited. It appeared that there had been a rumour at the trial that she might change her evidence. If that was the case, there was an even more urgent reason to find out whether or not she would. At worst for Gray, even if she had changed her evidence, she could not have significantly harmed the defence case. In the result, as the trial judge reminded them (Charge, pp. 66, 83), the jury never heard any evidence in support of Gray's incrimination of Love.
In our opinion there is no substance in these submissions. A finding by an appeal court that an advocate or solicitor has failed in his professional responsibilities is a serious judgment that should be made only on clear and cogent evidence. While certain of Mrs Carlton's statements underlined her potential significance to the defence, it does not follow that failure to precognosce, cite or call her constituted an Anderson error. For this ground of appeal even to be arguable, counsel for Campbell and Gray would have to establish not only that those acting for them were aware of Mrs Carlton's importance as a witness, but that they made a considered decision not to have her precognosced and not to call her as a witness. Even if that were to be established, counsel for Campbell and Gray would have to show that those decisions constituted a fundamental error of judgment going beyond the scope of counsel's professional discretion.
In our view, counsel for Campbell and Gray have failed to establish any of these points. In the ground of appeal and in the submissions of counsel, there has been no specification of the person or persons whom Campbell and Gray blame for the alleged failure in representation. In this complex trial, important decisions such as those relating to Mrs Carlton's evidence would be made by counsel. These events took place nearly 20 years ago. Counsel who defended Campbell have no recollection of the circumstances. Leading counsel for Gray is dead. His junior counsel has no material information within his recollection. While Mr McCormack appears to have been unaware even of Mrs. Carlton's existence, we must bear in mind that, as a witness in the trial, he took only a limited part in the defence. We cannot assume, therefore, that he has any useful insight into the decisions that counsel made or the reasons for which they made them.
In our view, we should be slow to pass judgment on the conduct of counsel on the meagre information before us. We are not prepared to draw any adverse conclusion against counsel from the mere fact that Mrs Carlton was neither precognosced nor cited on behalf of Campbell and Steele. The failure to precognosce Mrs Carlton is immaterial, in our view. The crucial evidence on which the present complaint is based was her evidence incriminating Love. That was all in the precognition given to Steele's defence. So the real question is whether counsel for Campbell and Gray were culpable in failing to have Mrs Carlton cited and led as a witness While it is certainly a possibility that counsel were culpable in this respect, it is in our view more likely that they carefully considered the whole question and, for good reasons, decided not to call her. Counsel would have had every reason to think that she might be an unreliable witness. We now know that she gave conflicting pre-trial statements on 29 April, 4 July and 7 July. In all likelihood, counsel for Campbell and Gray were aware of that. But despite her incrimination of Love in her statement of 7 July, there was always the distinct possibility that when confronted with having to incriminate her brother in court, she would fail to do so.
The solicitor advocate for Gray argued that in that event, the defence would be no worse off. We disagree. If there was every indication that Mrs Carlton might be an unreliable witness, there was no knowing what she might say once she was in the witness box. An experienced and sensible counsel would have had that in mind.
This case is distinguishable from Hemphill v HM Adv (2001 SCCR 361) on which counsel for Campbell relied. In that case there was an agreed failure by the defence to secure expert evidence on a point that had a vital bearing on the line of defence and which, if given, would have been "authoritative" (at para ). It was therefore a straightforward matter for the court to conclude that the failure to obtain such evidence had led to a miscarriage of justice. None of those circumstances can be said to apply in this case.
On the whole matter, we refuse to find fault with the experienced and able counsel who defended Campbell and Gray. We therefore refuse to disturb the convictions on this ground.
We shall quash the convictions of Campbell on charges (9) and (15) on the
grounds of (i) the new evidence and (ii) the misdirection relating to the evidence of Granger.
We shall quash the conviction of Steele on charge (15) on the grounds of (i) the new evidence, (ii) the misdirection relating to the evidence of Granger and (iii) the misdirection relating to the evidence of Ferguson.
We shall not disturb Gray's conviction on charge (9) on the ground referred to in the reference and we shall refuse his grounds of appeal.