APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Kingarth Lord Eassie	[2009] HCJAC 42 Appeal No: XC685/07 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by ANDREW POOLE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: D MacLeod, Q.C; D. Hughes

Alt: N. Beardmore, A.D.

29 April 2009

[1] On 6 July 2007 at the High Court in Glasgow, the appellant was found guilty by a unanimous verdict on charge (2) and by a majority verdict on charge (3) on the indictment. The charges (after certain deletions made in the course of the trial) were in the follow terms:

"(2) on 13 October 2006 at the Squayr Public House, 11-15 Burns Statue Square, Ayr, you RICHARD BAXTER HOLDEN and ANDREW THOMAS POOLE did assault James Barclay, c/o Strathclyde Police, Ayr and did repeatedly strike him on the head with unknown objects all to his severe injury.

(3) on 13 October 2006 at the Squayr Public House, 11-15 Burns Statue Square, Ayr, you RICHARD BAXTER HOLDEN and ANDREW THOMAS POOLE did assault Amos Lindsay Patterson, born 11 November 1971, c/o Strathclyde Police, Ayr and did repeatedly strike him on the head and body with a pool cue, a bar stool, a bar chair, table and other objects whereby he was so severely injured that he subsequently died as a result of his injuries on the 17 October 2006 at Ayr Hospital, Dalmellington Road, Ayr and you did murder him;"

[2] On 21 August 2007 the trial judge sentenced the appellant to imprisonment for life and in terms of Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, ordered that a period of 10 years be served before the provisions of Sections 2(4) and (6) shall apply.

[3] Although leave to appeal was granted in respect of a number of grounds of appeal, two grounds were, in the event, argued in the course of the hearing. These were grounds 1 and 5. We propose to deal with each in turn.

[4] Ground 1 is in the following terms:

"The trial judge erred in directing the jury, ... that there was 'sufficient evidence to merit a conviction' of the appellant of murder of the deceased. It is submitted that there was insufficient evidence in law to warrant the conviction of the appellant on Charge 3, either as co-actor or on ... [an] ... art-and-part basis ...."

[5] No transcripts of evidence were available before this court. Instead, senior counsel for the appellant was content to present the appeal on the basis of the facts and circumstances as disclosed in the trial judge's detailed report, with which (subject to certain particular matters to which we revert below) he took no serious issue.

[6] As reported by the trial judge, the facts and circumstances disclosed in evidence were these:

"(1) BACKGROUND
Amos Patterson was 35 years of age when he met his death. He was employed as a chef, and part time barman, at the Squayr Public House in Burns Statue Square. The Square is in Ayr town centre. Mr Patterson was not working on the night of his murder but was in the bar, drinking socially. He was friendly with Carol Wilson, the barmaid, who had decided that it would be her last night working in the pub. This was because of reports that the pub owner had made offensive remarks about her and, in any event, she did not feel that her efforts had been appreciated. Also in the bar that night was James Barclay, a 45 year old retired aircraft engineer. He had not been in the habit of staying late in the pub, where he was a regular. He had planned to visit his wife later on, but had cancelled that arrangement during the course of the evening as he had been enjoying himself. Mr Holden [the co-accused] was out with his girlfriend, Fiona Gibson, aged 22. They had been drinking elsewhere in the town, latterly at Rabbie's Bar, also in Burns Statue Square. They entered the Squayr at about 10.12 pm, having already consumed considerable quantities of alcohol.

(2) PRELIMINARIES

The trial was, to some extent, dominated by images taken by a CCTV camera situated across the road from the pub. The camera was able to see through a window in the pub (located between the letters Y and R in 'SQUAYR' and nearest to the main door in photographs A and B of Production 1). This view took images to the right of the bar as the camera looked in (similar to, but not as clear as, that in as photo V). The camera images provided precise timings of events and, ultimately, showed, in large measure, the murder of Mr Patterson taking place. The pub is on two levels. Immediately through the main door and to the left there is an internal door. Through that door is a front area containing a pool table (F, G and H). To the right of the internal door, there is the bar, along the public side of which the camera's lens was trained at the material time. About half way along the bar, there are steps up to an elevated rear area (P and V).

The initial events did not involve the appellant but they are worth narrating as they explain how he came to be involved in the murder. By about midnight, only the five persons mentioned above (i.e. not the appellant) remained in the pub. Mrs Wilson decided to close the bar. However, the five continued drinking in each other's company, apparently all having a good time sitting mostly in the rear (upper) area of the pub. As it was Mrs Wilson's last night, she was not, at least initially, too concerned when both Mr Holden and Mr Patterson went behind the bar and helped themselves and the others to more drink. Mrs Wilson herself had previously provided them with a free jug of a cocktail made from a combination of the 'alcopop' 'Blue WKD' and spirits. In order to conceal their activities, the pub's internal CCTV cameras, located in the public areas of the bar, were moved to show views of the ceiling (see eg photos L and N).

At some point late on into the night, the jolly mood changed for the worse. According to Mrs Wilson, the reason for the change was because Mr Patterson had, at her request, asked Mr Holden to stop going back behind the bar. Mr Patterson did this partly by putting his hands up in front of Mr Holden. This prompted Mr Holden to respond aggressively by saying 'Don't you f...ing put your hands on me' and 'If I want in there, I'll get in there'. At about the same time, Mrs Wilson had told Mr Holden that he was an idiot as one of the cameras, probably the one behind the bar, was still operating normally. According to Mr Barclay, both Mr Patterson and Mr Holden had been 'miffed' at this discovery and had made some attempts to get into the office in order to remove the relevant image disc. According to Miss Gibson, at about this time, 'things were getting out of hand', although she had difficulty explaining what this involved. Her version was that the mood had changed when Mr Patterson and Mr Holden had returned together from the office area. She said that Mr Barclay had come up and kicked her on the shin and had then 'went for' Mr Holden. Mr Barclay denied this, saying that it was not in his nature and he had not been in a fight since leaving school. It seems extremely unlikely that Mr Barclay would have kicked Miss Gibson deliberately, albeit that she did have a slight injury to her shin that she attributed to such an incident when speaking to the police on the Saturday afternoon (statement Pro 51). It is even more unlikely that Mr Barclay might have decided to take on Mr Holden. According to Mrs Wilson, the only person behaving aggressively at the time she left was Mr Holden.

Mrs Wilson handed the keys of the pub to Mr Patterson to lock up. She regarded him as drunk but capable. She contacted a taxi. It arrived and she left at about 00.45 am. Mr Holden and Miss Gibson also left the pub at this time. Mr Holden attempted unsuccessfully to get into the taxi, but Mrs Wilson refused to share it with him. Mr Holden and Miss Gibson walked a short distance away from the pub to Cow Wynd, where Miss Gibson lived. They did not go to her flat but remained in the street. It is at this point that the appellant enters the picture. Shortly after they reached Cow Wynd, the appellant, a friend of Mr Holden, arrived. Miss Gibson was unable to explain his sudden appearance. According to her recollection, Mr Holden had said that he had left his mobile telephone in the pub and he had decided to go back to retrieve it, accompanied by the appellant. Significantly, this apparently straightforward task was preceded by both leaving their jackets with Miss Gibson.

The appellant gave evidence. He had been in another pub about two miles away, waiting for a friend who was going to interest him in taking up kick-boxing. Mr Holden had telephoned him and asked him to come and join him, as he and his girlfriend had been attacked. The appellant did that, thus failing to meet his friend. When he met Mr Holden, he (Mr Holden) had told him about leaving his telephone. The appellant conceded that they had left their jackets with Miss Gibson in anticipation of there being 'a bit of a bother' when retrieving the telephone.

(3) THE MURDER

Remarkably, the murder of Mr Patterson is shown with reasonable clarity on the CCTV footage, especially in its enhanced form. It shows the appellant and Mr Holden approaching the pub at about 00.50 am in a determined fashion from the left. From this footage, the leaving of their jackets with Miss Gibson and the evidence of what happened next, the jury would have been well entitled to the view that they had both gone to the pub with a preconceived plan of doing its occupants serious physical damage. The appellant was wearing a light blue tee shirt with a distinctive dark stripe on the front top area, including across the short sleeves. It had some writing on the back also. He entered the pub first and can be seen heading left in the front area of the bar, where he acquired a pool cue. Mr Holden, who was wearing a blue and white checked short sleeved shirt, turned right and headed straight up the side of the bar towards the steps. He must have been heading to where Mr Patterson had been in the process of locking up. Mr Barclay was waiting for Mr Patterson to do that. Mr Barclay and Mr Patterson must have been taken essentially by surprise with the sudden appearance and immediate attack on them by Mr Holden and the appellant.

In the vicinity of the steps, Mr Holden can be seen in the CCTV footage struggling with someone (presumably Mr Patterson from the injuries detailed later) and thereafter bludgeoning that person with an item of some sort at least a dozen times while the victim was on the ground. The violence is extreme and prolonged. The appellant is seen following Mr Holden up towards the steps. It seems that he became involved primarily (but not exclusively (see infra)) with Mr Barclay. The appellant is seen leaving the pub at a point when Mr Holden delivers yet two more severe blows to Mr Patterson with the object. In particular, the appellant comes out of the door and turns, revealing the dark stripe on the top of his shirt, hence becoming recognisable. At the same time, a person, who must therefore be Mr Holden, is continuing to attack the victim. The two assailants then leave the vicinity of the pub and walk off in the direction from whence they came.

This interpretation of the events captured by the CCTV was spoken to by two police officers (DC Michael Neil and DS Martin Murray), who had viewed the footage several times in advance of giving their evidence and, other than in relation to identification, by a video enhancement expert, Ian McArthur. Although Mr Holden's representative put to the witnesses that the footage was at least unclear and addressed the jury on the basis that this was a case of mistaken identity, there was no evidence other than that it was Mr Holden who was engaged in the bludgeoning of Mr Patterson seen on the CCTV footage. As all the witnesses who viewed the footage said, it was clearly Mr Holden who was doing the bludgeoning.

(4) INJURIES
It is worth noting the injuries sustained by Mr Patterson and Mr Barclay at this stage, since they provide a graphic picture of the severity of the attack on both victims, but especially on Mr Patterson. In relation to the facial injuries, post mortem examination (report Pro 51) revealed that:

'The larynx showed a vertical fracture through the lamina just to the left of the midline and a fracture through the hyoid bone similarly just to the left of the midline...

There was complete detachment of the alveolar part of the maxilla with associated comminution of the right maxilla above it extending into the floor of the orbit. The mandible showed multiple fractures; a vertical fracture through the posterior part of the ramus of the mandible on the left and a fracture through the posterior condyle of the mandible on the right.'

Needless to say, there were associated lacerations on the face and external and internal bruising of significance. The pathologist, Dr Marjorie Black, said that 'fairly considerable force' would have been required to cause such multiple facial fractures. The brain had swollen as a result of the trauma and would have been pushed through the opening at the base of the skull, impacting on those parts of the brain which control breathing and heart beat. Although Mr Patterson had been revived at the scene, by the time that was achieved he had had extensive irreversible damage to the brain caused by oxygen starvation. There was extensive damage to the Adam's apple area of the neck, which would have restricted breathing. That breathing would also have been limited by the heavy bleeding, which the injuries to the face would have caused, and by the blocking effect of the broken facial bones. In addition, Mr Patterson had extensive defensive bruising to both forearms, fractures to the 2^nd and 5^th ribs on the left side and bleeding of the lung.

The only person present in the pub who gave a detailed account of what happened during the first incident was the appellant. His version of events was rejected, at least in material particulars, by the jury. It was essentially that he had gone into the pub with the intention of looking for the mobile telephone. That is what he had been doing when he went, coincidentally, straight towards the pool cue rack. He picked up a pool cue when he saw Mr Barclay coming towards him. He aimed a blow at Mr Barclay with the cue, but did not know whether it had made contact or not. He was punched by Mr Barclay and fell to the ground. He got up and engaged in a scuffle with him before getting up and leaving. He was not involved with Mr Patterson at all, on his evidence.

The situation with the attack on Mr Barclay is complicated by the fact that he was assaulted again after the first attack was over. There is no doubt that he did receive at least one severe blow to the head in the first attack and this must have been caused by the appellant. He could remember only standing at the bar (he thought near the front, but he was almost certainly towards the rear) waiting to leave. The lights had been switched off. The next thing he could recall was recovering consciousness, lying face down and bleeding near the top of the steps in the rear area of the pub. He immediately went to help Mr Patterson. Mr Barclay recalled that, whilst attempting to resuscitate Mr Patterson, he was attacked again by being hit in the middle of the head by someone (Mr Holden). He was seen trying to save Mr Patterson by the barmaid of Rabbie's Bar, Sarra Lumsden, who was passing by at the time. Miss Lumsden also noted that there was an upset table in view through the window. She saw Mr Holden going into the bar, shouting something and, at the same time, she recalled glass smashing. The episode of Mr Holden returning to the pub is captured on the CCTV camera at 1.00 am and it is clear that he assaulted Mr Barclay during this visit, possibly with a pool ball.

Mr Barclay had a boggy swelling to the left side of the top of his head, which was bleeding. This required two stitches. He had a further swelling below his right eye. He had a swelling on the right side of the top of his head, which also needed two stitches. He had two lacerations (4 and 3 cms) to the left side of the top of his head, which required stitches and staples. He had bruising to his left arm. He underwent physiotherapy to his shoulder for five months and still suffered from headaches.

(5) SCENES OF CRIME EXAMINATION

Examination of the scene revealed an area of some devastation. The forensic evidence is capable of throwing some light on events. First, there was no identifiable blood found on the clothing of the appellant, which had not been washed. This suggests that he was not particularly close to Mr Patterson when he was getting killed, since there was a significant amount of blood spraying about at that time. Mr Holden's family washed his clothes soon after the incident, so no traces of blood were present on them. However, there were bloodstains on the sole of his right shoe and on the upper stitching on the surface of his left shoe, the blood having come from Mr Patterson. This appeared to indicate, if there were any doubt given the CCTV footage, that Mr Holden had been in the immediate proximity of Mr Patterson after he (Mr Patterson) had been bleeding.

There were various pieces of furniture damaged in the melée. It seems reasonable to conclude that this furniture, or at least some of it, was used to assault the victims. First, near the pool table (photo H) there was a chair with its leg missing, that leg being found in the vicinity of where Mr Patterson ended up, lying up against a quiz machine (V and C2). A print of Mr Holden's left little finger is on this chair. Secondly, and significantly in the case against the appellant, there was a bar stool (P and B2) found at the wall near where Mr Patterson had fallen. This stool had part of its supporting structure broken off and lying in the pool of blood of Mr Patterson (W and X). On one of the upper parts of the stool there was a print from the appellant's right fore finger. Since the appellant had not been in the pub prior to the attack, he must, presumably, have lifted this stool during that attack. The fact that this stool had probably come from the rear bar area, where its cushioned seat was located, suggests that the appellant was indeed involved to a much larger extent with Mr Patterson than he admitted in evidence. Thirdly, between the main door and Mr Patterson's pool of blood, there was a broken table (P, Q, R and S). The cast iron base of this table was very heavily blood stained, with runs of blood on one side of its upper part. Bloodspots and stains were also found on the upper area and on the side of the three legs of the base. There were blood spots under the base containing mixed blood of Mr Barclay and Mr Patterson. On the top of the table there were impact spatters of bloodspots of Mr Patterson. There is good reason to suppose, especially because of these spatters, that this table was the murder weapon. In that regard, it is difficult to conceive of a situation whereby the material injuries to Mr Patterson could have been caused by the middle (or any) section of a pool cue. Mr Holden's left palm print is on the table top.

A mid section of pool cue was found at the side of the bar (foreground of photo T) bearing bloodspots and contact bloodstains from Mr Patterson. A larger (tip end) section was found at the steps (background of T) with spots and runs and stains of blood from Mr Barclay on it. There was no blood on the butt, which was found up on the raised level of the bar next to the cushion of the broken stool (K2). Also in that raised area there was an empty bottle of Becks on the floor with Mr Holden's thumb print on it (N2, better in H2). Of course there may have been several reasons for the blood and fingerprints getting on the furniture, bottle and cue, but the pattern suggested that Mr Holden had used the table at least to assault Mr Patterson and the appellant had used the cue to assault Mr Barclay.

(6) AFTERMATH
Why Mr Holden returned to attack Mr Barclay for a second time remains as much a mystery as why he and the appellant decided to attack the occupants of the pub with such savagery in the first place. Miss Gibson had said that, after the first attack, they had made their way to a local taxi rank, but Mr Holden had again expressed a desire to retrieve his telephone and had set off once more. The appellant had sprinted back down to the pub in an effort to remove him from the scene. The CCTV footage reveals the two then making their way back to where Miss Gibson was standing and there are general hugs and embraces before they disappear from view. Despite the CCTV footage, according to Miss Gibson, the two attackers seemed neither up nor down. She did not think anything serious had happened. They took a taxi, initially to Mr Holden's house for drink, and then to the appellant's flat, where they spent the night.

The next morning, according to Miss Gibson, the appellant received a text about a murder at the 'top of the town'. She had started to ask questions, as she could sense that something was wrong. However, the two did not seem 'too bothered'. She left Mr Holden in the flat, while the appellant went to the Job Centre. On questioning Mr Holden later, he said that he could not remember what had happened. His sister had brought him a change of clothing and had taken his old clothing away. Not surprisingly, Miss Gibson regarded this as odd and she started to get angry. Mr Holden then said that he had been on the floor of the pub and had seen the appellant holding a bar stool. He said that the appellant had repeatedly struck someone with it. The appellant was there when this was said and he had confirmed that he had done a lot of damage and thought that he had 'killed that guy', whoever 'that guy' was.

On the Saturday, Miss Gibson announced that she was going to the police station to find out what had been going on. She was interviewed over a period of six hours. Absent from her statement is any mention of the appellant admitting to anything or of Mr Holden reporting him as wielding a stool. On the contrary, the statement reads (Pro 53 p11):

'Richard and Andy never went into any detail about the attack to myself, even when knowing the injuries to the male, nothing was said by Andy'.

Miss Gibson said that she had made no mention of the confession as she was scared, under pressure from the police and did not want to get anyone into trouble. A considerable period of time was spent going over this statement, not with Miss Gibson, but with one of the police officers carrying out the interview. The statement contains a number of grammatical and spelling errors, which were highlighted with a view to demonstrating its inaccuracy as a document. It uses words which the police rather than a lay person would write, thus suggesting that the witness was assenting to propositions rather than giving her own spontaneous account. On the other hand, it was signed by Miss Gibson although, contrary to the policeman's evidence, she said that it had not been read over to her beforehand.

Mr Poole denied making the remarks attributed to him and said that, on the contrary, it had been Mr Holden who had said 'I think I may have killed him' or words to that effect.

Both Mr Holden and the appellant surrendered to the police on the Sunday in the company of their solicitors. When interviewed, other than saying that they had done nothing wrong, they replied 'no comment' to every questions asked."

[7] As to those parts of the trial Judge's report which were not accepted, senior counsel for the appellant did not, as we understood it, accept the trial judge's observation that:

"From this footage, the leaving of their jackets with Miss Gibson and the evidence of what happened next, the jury would have been well entitled to the view that they had both gone to the pub with a preconceived plan of doing its occupants serious physical damage."

Further, although he accepted that the evidence disclosed a fingerprint from the appellant's right forefinger on one of the upper parts of a broken bar stool, he did not accept that it could be concluded that the appellant "must, presumably, have lifted this stool during" the attack on Mr Patterson. His position was that, in light of certain evidence given by the fingerprint expert in cross-examination, nothing more could safely be taken from the fingerprint evidence than that the appellant had at some time come into contact with the stool. He thus could not accept the trial judge's view that the evidence "suggests that the appellant was indeed involved to a much larger extent with Mr Patterson then he admitted in evidence". It may be noted also that before this court the Advocate depute accepted that during the course of the trial the Crown did not seek to found upon this evidence as indicating a direct involvement by the appellant in the attack on the deceased. In addition, senior counsel stressed that in the course of his address to the jury the trial Advocate depute had not founded on the evidence by Miss Gibson to the effect that the appellant had confirmed that he had done a lot of damage and thought he had "killed that guy", the Advocate depute reminding the jury that he had, in the course of her evidence, accused the witness of lying in that regard to protect Mr Holden. This latter aspect of the case is referred to in more detail in connection with ground of appeal 5, to which we turn later.

[8] In advancing submissions in support of ground of appeal 1, senior counsel emphasised that it was clear on the evidence (and this was the Crown position at the trial) that the person who had directly attacked the deceased, Mr Patterson, (and indeed who had murdered him) was Mr Holden. It was accepted nevertheless that it was open to the jury to infer that the appellant and Mr Holden had both returned to the public house with the joint intention of attacking both Mr Patterson and Mr Barclay, and that at least the use of snooker cues was in their contemplation. It was further accepted that it was open to the jury to infer that the appellant must have attacked Mr Barclay with a snooker cue, delivering more than one blow to the head. Although it was open to the jury to find the appellant guilty of the culpable homicide of Mr Patterson, there was no sufficient evidence entitling them to find him guilty of his murder. In particular, it could not be said, applying McKinnon and Others v HMA (No. 2) 2003 JC 29; 2003 SCCR 224, that he was party to a concerted attack which carried the obvious risk that life would be taken. There was nothing in respect of his own actings in relation to Mr Barclay which suggested that he was party to the use of such violence as carried the risk of death. Mr Barclay's injuries were at "the lower range of severity". There were no brain injuries or bony fractures. The Crown had not charged the appellant with attempted murder or assault to the danger of life in respect of his attack on Mr Barclay. Further, there was no evidence from which it could be inferred that he had countenanced, anticipated or adopted the extreme violence inflicted by his co-accused on the deceased. There was no evidence from which it could be inferred that the appellant had the mens rea for murder.

[9] The Advocate depute submitted that there was sufficient evidence to entitle the jury to find the appellant guilty of murder on the basis of concert. The question, following McKinnon and Others v HMA, was whether it could be said on the evidence that it was objectively foreseeable to the appellant that such violence was liable to be used as carried an obvious risk of life being taken. The question was not whether the appellant himself could be said to have had the mens rea for murder. There was sufficient evidence to entitle the jury to answer the relevant question in the affirmative. Reference was made inter alia to the actions of the two accused before their entrance to the public house, to the actions of the appellant in attacking Mr Barclay with blunt force violence to the head, causing severe injury and loss of consciousness, and to the evidence of the actions of the two accused in the aftermath. In addition, the evidence of the appellant's fingerprints on the broken stool and Miss Gibson's whole evidence could, if accepted, have been taken to indicate a greater, direct involvement by the appellant in the murderous attack on the deceased.

[10] In considering whether there was a sufficiency of evidence, we think it safer, at least in the first instance, in the absence of any transcript of the evidence of the fingerprint expert, to leave out of account the evidence relative to the broken stool. We are also prepared, in advance of considering ground of appeal 5, to leave out of account the evidence of Miss Gibson of the apparent remark by the appellant that he had done a lot of damage and thought that he had "killed that guy". We are thus prepared to judge the matter on the basis perhaps most favourable to the appellant, namely that on the evidence his own direct involvement was confined to involvement with Mr Barclay.

[11] Even on that basis, however, we have come to the clear view that there was sufficient evidence entitling the jury to convict him of murder on the basis of concert. There is no doubt that it was open to the jury to infer that the person who attacked the deceased was Mr Holden. There is equally no doubt that the blunt force violence used by him was murderous. It is accepted on behalf of the appellant that it was open to the jury to infer that the appellant and Mr Holden both returned to the public house with the joint intention of attacking both Mr Patterson and Mr Barclay, and that at least the use of snooker cues was in their contemplation. The question, following McKinnon and Others v HMA, comes to be whether there was evidence entitling the jury to find that it was objectively foreseeable to the appellant that such violence was liable to be used as carried an obvious risk of life being taken. The question is not, as appeared at least at times to be suggested, whether there was evidence from which it could be said that the appellant had the mens rea necessary for murder. While the matter was for the jury, it cannot, in our view, be said that the appropriate question could not have been answered in the affirmative. It was, in particular, in our view, open to the jury to infer, as the trial judge put it colloquially in the course of his charge, that both accused went to the public house with the intention of "beating the living daylights" out of the two men in it. Reference may be made inter alia to the evidence of both accused leaving their jackets with Miss Gibson before they set off, anticipating "a bit of bother"; of both approaching the pub in a determined fashion; of the appellant immediately, and without apparent consultation, proceeding to obtain a snooker cue; of Mr Holden then setting upon and bludgeoning the deceased, with another item of some sort which apparently came to hand, with extreme violence while he was on the ground, at a time when it was open to the jury to infer that this was within the plain sight of the appellant, who was seen to follow Mr Holden towards the steps (a conclusion which, it appeared, senior counsel accepted was open to the jury). There was, it seems, no evidence of the appellant desisting or protesting. Instead, the evidence suggested that he then became involved in an attack on Mr Barclay; an attack in which it was open to the jury to conclude that he struck at least one severe blow to the head of Mr Barclay with a snooker cue, which was later found to have been broken into three parts, causing severe injury and unconsciousness. It was open to the jury to conclude that even this violence carried with it the risk that life would be taken, however the charge was libelled by the Crown. The evidence further indicated that after the violence both men left together, apparently unconcerned as to what had taken place. The trial judge gave very clear directions on the law of concert, leaving it open to the jury, if they thought it appropriate, to convict Mr Holden of murder and the appellant of culpable homicide (if anything). He was, in our view, entirely right to do so. If, of course, it was open to the jury to consider, in addition, the possible interpretation of the evidence of the appellant's fingerprint on the stool referred to by the trial judge, and the evidence of Miss Gibson which is the subject of ground of appeal 5, the case against him would have been even stronger.

[12] Ground of appeal 5 is in the following terms:

"The trial judge also erred when he directed the jury ... that they could take into account in the case of this appellant the evidence of Crown witness, Miss Fiona Gibson, who had attributed to him in her evidence a remark ... [on] ... page 25 ... [of the charge]"

[13] In the course of his charge to the jury the trial judge, in explaining the use that could be made, by way of exception to the rule against hearsay, of statements made before the trial by accused persons, said, inter alia, at page 25:

"What you can use in the case for or against Mr Poole, ladies and gentlemen, is the evidence of Fiona Gibson, if you would accept it and Crown are not founding on it but it is for you to decide, where she says that Mr Poole said that he had done a lot of damage and thought he had killed that guy, whoever that was".

Later in the charge, he effectively reminded the jury that Miss Gibson's evidence to this effect was inconsistent with her earlier police statement, saying:

"If a witness has given an inconsistent statement to the police or someone else before his or her testimony, that may detract from that witness as regards credibility and reliability. It may not, it depends on the view you, the jury, take. So of course, it was used in the case of Fiona Gibson in relation to what, if anything, Mr Holden and Mr Poole had said after the incident, and you remember that passage of the evidence. You can use what the policeman said she did say, subject to Mr Carroll's criticisms of course of the accuracy of that statement, in gauging her credibility and reliability about what was said after the incident back at the flat."

[14] In the course of the evidence, the Advocate depute, whose approach was to seek to show that Mr Holden was the person who directly attacked the deceased, had challenged the veracity of Miss Gibson's evidence on this matter, and in his speech to the jury he said this:

"I want to say a little, ladies and gentlemen, about the evidence of Fiona Gibson. You will appreciate that her evidence confirmed that Holden refused to answer her persistent questions about what he had been up to and that only by some intuition she had to work out for herself that he was indeed involved in this awful incident. We recall how shocked she was to see the DVD which clearly showed her boyfriend well and truly involved in it. Are you satisfied, or not, that she has told us all she knows? In particular, do you believe her account of what she says Poole admitted in her presence about having caused damage to the victim, in circumstances where Holden was speaking about seeing Poole wield a chair as a weapon?

Now you may think, ladies and gentlemen, that as the Prosecutor in the case, I would be delighted to have evidence that one of the accused had confessed to the crime, and indeed, if I believed her evidence on that point for a moment, I would be delighted. I would be delighted to found on that evidence and ask you to accept it, but the role of Prosecutor in the Scottish legal system, is not to secure a conviction at all cost. It is not to turn a blind eye to glaring inconsistencies in the case. It is not to ask a jury to convict on dodgy evidence and that is why, whilst I certainly do ask you to convict Andrew Poole, I do not, for a moment, rely on Fiona Gibson's evidence of his confession. I called her a bare faced liar. I stand by that assessment. It is, however, a matter for you, but I want to make the Crown's position on that plain."

One might question the propriety of the reference to what counsel himself believed, but it is clear what the tenor of the submission was.

[15] On behalf of the appellant, the short submission was that, in the unusual circumstances of the case, the trial judge should have directed the jury that they could not have regard to the relevant evidence in considering the case against the appellant. Although it was evidence favourable to, and founded on by, the co-accused, what the trial judge could and should have done was to direct that the jury could use the evidence as exculpatory of Mr Holden but not as inculpatory of the appellant. As a result of the trial judge's failure so to direct the jury, there had been a miscarriage of justice.

[16] For the Crown, the submission was that neither the cross-examination by the Advocate depute nor the position taken in relation to the witness in his speech could be determinative of the question for the jury, which was whether, the evidence having been led, it could be accepted as credible and reliable. If the jury accepted the evidence, then nothing the Advocate depute said could render it inadmissible in the case against the appellant. If the trial judge had given the direction suggested he would have been open to criticism from the co-accused. Although the situations were different it was to be noted that a trial judge is not bound by views on sufficiency expressed by an Advocate depute, (reference being made to Fraser v HMA 2008 SCCR 407, in particular para [175] or by the position apparently adopted by the Crown in relation to possible alternative verdicts (reference being made to Ferguson v HMA 2009 SCCR 78, in particular para [30]).

[17] Although the circumstances are unusual, we consider that the trial judge cannot be criticised in this matter. The evidence having been led, it was a question for the jury whether to believe it or not. Two counsel, it appeared, invited them to reject it; one to accept it. The answer could not be determined by the position adopted in cross-examination, or in submission, by the Advocate depute (although no doubt, the jury was likely to be strongly influenced by both). The Advocate depute rightly recognised this in his speech, accepting that it was "a matter for you". The trial judge fairly and properly reminded the jury that the Crown did not found upon the evidence, and directed them that it was open to them to test its veracity by reference to what the witness had said (or not said) to the police. In our view he required to do no more. The argument for the appellant appeared to us to amount to the proposition that, the Advocate depute having invited the jury to disbelieve the evidence, it became inadmissible as a matter of law against the appellant; a proposition which, in our view, cannot be supported. If the trial judge had given a direction of the kind suggested (appropriate, although perhaps not always easy for a jury to apply, where certain evidence is admissible in relation to one accused but not in relation to another) he would indeed, we think, have been open to potential criticism from those representing the co-accused.

[18] In all the circumstances the appeal is refused.