Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 183
P94/13	OPINION OF LADY WISE in the Petition by BERNARD CARLIN YOUNG (AP) Petitioner; for Judicial Review of a decision by the Scottish Criminal Cases Review Commission not to make a reference to the High Court of Justiciary ________________

Petitioner: Bovey, QC, Moll; BCKM Solicitors

Respondents: Moynihan, QC; Scottish Criminal Cases Review Commission

26 November 2013

Introduction & background to the petition

[1] On 30 November 2006 the petitioner was convicted after trial, along with two co-accused, of murder and attempted murder. He was sentenced in January 2007. The evidence at the trial in question was that the petitioner's co-accused, Bain and Cosgrove, had entered a public house and shot two men, killing one and injuring another. The Crown case was that the petitioner had played an ancillary part in the murder and attempted murder by driving the perpetrators to the neighbourhood and providing other assistance in the form of masks and possibly the gun. The petitioner's defence was that he had played no part in the crimes charged and that he was at home at the time of the offences being committed. A special defence of alibi was before the court. There was ample evidence against Bain and Cosgrove, the two men who had entered the Marmion pub and conducted the shooting. Cosgrove's defence was that he had gone to the pub with Bain under duress. Bain had been chased and attacked by a group of individuals after the shooting and was found by police officers in a back garden about three hours later. The evidence against the petitioner was circumstantial. The Crown invited the jury to infer that he had been involved in the supply of a gun and masks used by Bain and Cosgrove in the shooting, that he had driven the two men to Southhouse Terrace before the shootings with the intention of driving them away afterwards in his van but that he had been seen near the locus and that plan was aborted. The jury convicted all three men.

[2] An attempt was made on behalf of the petitioner to appeal both conviction and sentence but this was refused at the sift stage. On 23 December 2008 the petitioner applied to the respondents to refer his case back to the High Court under the provisions of section 194B of the Criminal Procedure (Scotland) Act 1995. The central allegation was that the petitioner had been defectively represented in both the preparation and presentation of his case. On 7 December 2009 the respondents advised the petitioner that for the reasons set out in the statement of reasons ("SOR") attached to their letter, they were not minded to refer his conviction back to the High Court. The matter of sentence was dealt with separately and is not relevant to the subject matter of this petition. The petitioner made further written submissions within a 21 day period afforded by the respondents and included a note from senior counsel supporting his application. By letter of 1 March 2011 the respondents advised the petitioner that for the reasons set out in a supplementary statement of reasons ("SSOR") they did not consider that a miscarriage of justice may have occurred in the petitioner's case and again refused to refer the matter back to the High Court.

[3] The respondents are a body corporate established by the Criminal Procedure (Scotland) Act 1995, section 194A. The Commission is an important public body charged with forming its own opinion on whether or not a miscarriage of justice may have occurred. The grounds on which the respondents may refer a case to the High Court are set out in section 194C. A referral may be made if the Commission believes:

(a) that a miscarriage of justice may have occurred; and

(b) that it is in the interests of justice that a reference should be made.

Section 194B provides that the respondents can make a reference to the High Court at any time, whether or not an appeal against conviction or sentence has previously been heard and determined by the Appeal Court. However, section 194B and 194C read together make it clear that the respondents must have regard to the need for finality and certainty in the determination of criminal proceedings. Section 194D(1) provides that the respondents can act themselves by referring a case, whether or not an application has been made, by or on behalf of the person to whom it relates. Further, in considering whether to make a reference, the respondents may take any steps which they consider appropriate for assisting them in the exercise of their functions. In particular, they may undertake enquiries themselves and obtain statements, opinions, or reports or request the Lord Advocate or any other person to undertake such enquiries or obtain such statements, opinions and reports - section 194F. The respondents may also at any time when considering whether to make a reference seek the opinion of the High Court on any point on which they desire assistance. This would include, but is not limited to, assistance on a point of law - section 194D(3).

[4] At the first hearing which took place before me, I heard full argument on the petition and answers. Counsel on both sides were agreed that there was no material dispute of fact that would require a second hearing. They agreed also that the approach of the court in a petition of this sort could not be to conclude whether the respondents' decision was right or wrong. Rather, what required to be explored was whether the decision complained of was reviewable on one or more of the recognised judicial review grounds. In summary, the petitioner's contention is that the respondents have erred in their approach to the arguments about defective representation presented for the petitioner. The respondent's position, conversely, is that the Commission adopted the correct approach, did not fall into error of law and did not reach any unlawful or irrational decision, thus there is no ground on which the court could interfere.

The applicable law on defective representation cases

[5] As the petitioner's application to the respondents was based on alleged defective representation, it may be useful first to summarise the applicable law in this area. The first authoritative statement on defective representation can be found in the case of Anderson v HMA 1996 JC 29 where a five judge bench discussed fully the question of whether complaints about the conduct of the defence could be a ground of appeal. The following much cited dicta summarises the position:

"Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or his solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to have resulted in a miscarriage of justice ... it can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."

In Burzala v HMA 2008 SCCR 199 the court emphasised again, at para 33, that the scope for an appeal on the ground of defective representation is limited. A miscarriage of justice can only be said to have occurred if the conduct of the defence has deprived the appellant of his right to a fair trial. That can occur if the defence was conducted in a way in which no competent solicitor or counsel could reasonably have conducted it (see Grant v HMA 2006 JC 205 at para 21). Examples of that include counsel having made a decision in a case that was "so absurd as to fly in the face of reason" (McBrearty v HMA 2004 JC 122 at para 36) or where such a decision taken by counsel was "contrary to the promptings of reason and good sense" (McIntyre v HMA 1998 SCCR 379). However, what has been clarified in Grant (supra) and in Burzala is that criticism of strategic or tactical decisions as to how the defence should be presented will not be sufficient to support an appeal on the ground of defective representation if those reasons were reasonably and responsibly made by counsel or the solicitor in accordance with his or her professional judgement. Accordingly, a failure to present a particular line will not found an Anderson appeal if the decision not to do so is within the scope of the reasonable judgement of counsel or the solicitor involved.

[6] The dicta in Burzala v HMA was approved as a useful summary of the scope of an "Anderson" appeal in the case of Urquhart v HMA 2009 SCCR 339, where the following view was expressed:

"As indicated in the Burzala summary, it may be, and has been, expressed in various formulations, but the professional judgement of the trial counsel or solicitor must generally be respected and it is only a marked departure from what might be expected of a reasonably competent forensic practitioner which will provide any foundation for an appeal on an Anderson basis."

Further, in DS v HMA 2008 SCCR 929, a case involving a reference to the court by the respondents, the court noted the development in the scope of defective representation appeals and referred to two further decisions, Jeffrey v HMA 2002 SCCR 822 and Ditta v HMA 2002 SCCR 891. Having regard to all of the relevant authorities the view was expressed that as the law remained as it was laid down in Anderson v HMA and that for an appeal to succeed on the ground of defective representation, an appellant had to demonstrate a miscarriage of justice by reason of his defence not being presented to the court.

[7] The latest relevant authority in relation to defective representation is the case of Woodside v HMA 2009 SCCR 350. Again the scope of an Anderson appeal was said to be limited. The court expressed matters as follows:

"... An Anderson appeal is not a performance appraisal in which the court decides whether this question or that should or should not have been put; or whether this line of evidence or that should or should not have been pursued. The appellant must demonstrate that there was a complete failure to present his defence either because his counsel or solicitor advocate disregarded his instructions or because he conducted the defence as no competent practitioner could reasonably have conducted it (McBrearty v HM Advocate at paras 34-16, 60; Grant v HM Advocate at paras 21-23; DS v HM Advocate). That is a narrow question of precise and limited scope."

The final decision on defective representation that came under scrutiny in the argument before me was the earlier case of McIntosh v HMA 1997 SCCR 389. There the appellant had been convicted after trial on indictment. He appealed against conviction on the ground, inter alia, that his solicitor had not prepared the case properly, particularly in relation to precognoscing certain witnesses and taking full information from the appellant. Senior and junior counsel had represented him at the trial. The court held that where inadequate preparation is put in issue, the critical issue was what the effect of any inadequate conduct was on the defence. To do that the appellant would require to be in a position to identify the respects in which his defence was affected by the conduct in question. Unless the appellant could show how the lack of information from those who had not been precognosced prejudiced the defence, an appeal on that basis could not succeed. The ratio in McIntosh has been applied in subsequent cases, particularly in the case of Lindsay v HMA 2008 JC 310.

Submissions for the petitioner

[8] Senior counsel for the petitioner explained that he would attempt to show that the failure of the solicitor advocate representing the petitioner (hereinafter "Mr B") to (i) challenge certain CCTV timings at trial and (ii) present a statement of the co-accused Cosgrove as part of the defence amounted in the whole circumstances to a failure to present the defence of the petitioner. He submitted that neither failure fell within the scope of reasonable conduct of the case. As the respondents had concluded otherwise, they had erred and the matter should be reviewed by this court.

[9] The closed circuit television (CCTV) evidence was obtained from an Edinburgh Council camera. The tape showed the distinctive van of the petitioner approaching a road on the left near the locus of the crimes, the Marmion public house in Gracemount Drive, Edinburgh. Shortly after the petitioner's van is seen on the CCTV, two figures are seen emerging from a road on the left. Those figures were not positively identified but at trial the suggestion that they were the perpetrators Bain and Cosgrove was canvassed. It was not disputed that two different timings appeared on the CCTV. One fitted with the timing of the shooting and the other was 58 minutes earlier than that. In short, the petitioner's complaint was that Mr B had failed to investigate the disparity between those timings and to challenge the police evidence which was to the effect that the later timing was to be preferred. The CCTV evidence was one of the issues that the respondents had been asked to consider with a view to referring the case to the High Court. Mr Bovey submitted that they had erred in law in refusing to give weight to the failure to challenge the CCTV timings and had wrongly approached the issue as one of Mr B's inability to challenge on the material before him. Further, it was contended that the respondents had wrongly applied the case of McIntosh v HMA to exclude a failure in preparation where one could not say what the preparation would have shown.

[10] Turning to the SOR number 6/1 of process, paragraph 34 set out the respondents' understanding of what the CCTV evidence at the petitioner's trial was. Then, at paragraph 83-88 the respondents discuss their findings and views on the petitioner's claim in relation to the alleged failure to challenge the timings. It is recorded that regrettably, the tape from the Council Housing Department camera could not be located and provided by Crown Office, nor were the police able to provide a copy of it. Accordingly the respondents expressed the view that in the absence of the original tape and under reference to McIntosh, it could only deal with the petitioner's submission in relation to the footage by reference to the compilation tape. At paragraph 86 the respondents record having listened to the evidence of various witnesses who spoke to the timing of the footage in question. At the trial DC Paterson (Crown witness number 115) accepted that the timing of CCTV could in some cases be determined from the footage itself and in other cases it had to be obtained from the recording system. When each tape of footage was seized, he had independently checked the accuracy of the times either shown on the recording or the recorder itself against Greenwich Mean Time. There were a number of inaccuracies and these were detailed in his report (number 6/7 of process). Once all the footage had been reviewed, the tapes were passed to a technical colleague to prepare a compilation tape. DC Paterson gave evidence that when he seized the footage from the Housing Department, the footage had one time shown on screen. However, when the tape was subsequently viewed at the police office another time, different by 58 minutes, was also displayed at the bottom of the screen. DC Paterson said he was satisfied that the time shown at the bottom of the screen was accurate. DC Paterson's evidence was corroborated by DC Elder. During cross-examination of DC Paterson by Mr B, the witness accepted that various timings, including that on the Housing Department tape, "fitted" the Crown case after adjustment. On a question of the witness by the trial judge, DC Paterson confirmed that the correct times had been calculated by the police and that his evidence was based upon the timings as calculated by the police which took account of errors on the various CCTV tapes and systems.

[11] Mr Bovey submitted that there was a lack of clarity as to how the second timing came to be on the tape and that the opportunity to investigate that had been lost. When the matter was reviewed further in the SSOR, number 6/2 of process, there appeared to be a difference in opinion between Mr B who had led at trial and his junior solicitor advocate. Mr B indicated that the CCTV was just an adminicle of evidence and not essential but his junior regarded the CCTV footage as one of the most significant pieces of evidence against the petitioner. In the SOR at paragraph 88 the respondents had found that there had not been any failure on the part of Mr B to address the timing on the footage further than he had in his preparation and presentation of the applicant's defence. The matter was then revisited in the SSOR at paragraphs 49-63. The respondents record various further submissions made by the petitioner in relation to the CCTV evidence and how it was consistent with his alibi defence. At paragraph 53 it is recorded that while the "original" timings on the CCTV are consistent with elements of that defence, they were not consistent with the accounts of other potential defence witnesses or with a consultation note in relation to information given by the petitioner. Nonetheless, the respondents were concerned about the difficulties presented by the missing CCTV tape and so further enquiries were carried out. These did not result in the missing tape being found and it seemed likely that it had been disposed of in conformity with relevant policy for disposal of crime records and productions. The respondents' conclusion on the CCTV evidence can be found at paragraphs 62 and 63 of the SSOR, taken together with paragraph 87 of the SOR. In essence, in the absence of the original tape and of any compelling evidence undermining the excerpt used from that tape in the compilation tape, the respondents remained of the view that there was no support for the petitioner's submission that the footage, not included in the compilation tape from the camera, could have undermined the timings attributed to it in the Crown case against him. The respondents accepted that the significance of the footage should have been apparent to any reasonable solicitor as it potentially contradicted the timing attributed to it by the Crown and graphically contradicted the petitioner's alibi as lodged. However, they considered that standing the terms of the decision in McIntosh v HMA, it could not be shown what information more detailed preparation by Mr B would have revealed and so they could not be satisfied, to the required legal standard, that there was a failure on the part of the representative to prepare properly the petitioner's defence by reference to CCTV evidence which might have assisted him. There was also an unsatisfactory chapter of the investigations into the CCTV evidence in that Mr B believed that there had been a challenge to the CCTV evidence timings supported by a witness from the Council but as the respondents could find no record at all of that taking place, it must have been wrong. It was contended for the petitioner that Mr B clearly understood the need for a challenge but had not followed that through. It was submitted that the case of McIntosh v HMA could be distinguished given that the fault in the crucial tape being lost had to lie with the Crown. In any event, the respondents had focussed more on a claim about inadequate preparation and had failed to address directly the failures in presentation in relation to challenging the CCTV evidence. The thrust of the petitioner's argument was that the presence of two timings on the CCTV compilation tape presented to the court could have been challenged on behalf of the petitioner. Mr B's instructions were that his client was at home during the period of the later timings. Further, there were on the compilation tapes, emergency vehicles which on the later timing were at the locus later than one might have expected, albeit that these were taken from a different camera. It was submitted that one was left wondering how the additional time came to be shown on the compilation tape. This was important given that it amounted to a "gift to the Crown". Mr B had not viewed the tapes himself but had relied on his instructing solicitor (see SSOR appendix 10).

[12] The respondents conclude their analysis of the CCTV footage in the SOR with the following view:

"The Commission also considered that the fact that two figures, thought to be Bain and Cosgrove, emerged from Southhouse Terrace two minutes after the applicant's van turns into the road is the key to the inference that he provided his co-accused with transport that night rather than the fact that this timing also fits with the time of the shooting as recorded on the Marmion pub system of 10.54pm."

Counsel submitted that it was wrong to say that the two figures supported the later timings because it had not been proved that those shown on the footage were the co-accused. The lack of challenge by Mr B resulted from him also wrongly making that link.

[13] The error in law into which the respondents were said to have fallen was that they had applied McIntosh v HMA "over-mechanically" and used it inappropriately to reject the petitioner's submissions. McIntosh was inapplicable where evidence had been lost in circumstances such as those pertaining in this case and should not be applied where there were complaints other than just preparation. Mr Bovey accepted that the ratio of McIntosh was that an appellant had to show what a more detailed preparation of the case would have revealed. However there was no suggestion in McIntosh that evidence was lost. Where it had been lost as in this case it was no longer possible to carry out the necessary enquiry and a miscarriage of justice was therefore more likely to ensue. In any event, the respondents ought to have given a more holistic consideration to the case given that other points had been raised and there was no authority that dealt with a situation where crucial materials were lost in the hands of the prosecuting authorities. It was important to note that the respondents remained of the view that the footage, had it been available, could yet have undermined the timings attributed to it in the Crown case against the petitioner - see paragraphs 62 and 63 of 6/2 of process. In all the circumstances, the failures of Mr B to investigate the CCTV matter further and to challenge on such information as was available, amounted to a failure to present a defence substantively.

[14] The second main issue in relation to alleged defective representation was that of the co-accused Cosgrove's statement to the police. Evidence of the police interview of Cosgrove was played at trial in the Crown case. Mr B had attempted to rely upon that evidence in his speech to the jury but the trial judge in his charge explained to the jury that it could not be relied upon. Counsel submitted that a failure to get the Cosgrove statement to the jury amounted to a failure to present the petitioner's defence and again did not fall within the professional judgement or discretion of the representative. The law in relation to hearsay statements was now clearly set out in statute. Section 259 of the Criminal Procedure (Scotland) Act 1995 provides that a party intending to have a statement admitted in evidence has to lodge an application. Further, section 261 provides that evidence of a statement made by an accused shall be admissible by virtue of section 259 at the instance of one accused against another. As Mr B had not given notice under section 259 that he wanted Cosgrove's statement admitted, he could not then rely upon it. Reference was made to Mr B's jury speech, number 6/5 of process. The speech indicates that there were three aspects of the case on which it was sought to rely on behalf of the petitioner. These were described by Mr B (at page 4 of the transcript) as the Crown aspect, Mr Cosgrove's aspect and the petitioner's aspect, which was the alibi defence. A general criticism was made that Mr B had not only failed to challenge the "double timing" of the CCTV in his speech but also that he put forward the analogy of the "taxi driver" who ends up driving those who perpetrate a crime but not knowingly. Prominence was given to this uninstructed defence. So far as the Cosgrove statement aspect was concerned this, was said to be a good line which should have been pursued for the defence because it was supportive of the petitioner not being involved. The defence of alibi took only 3-4 pages of the speech at the end of the transcript.

[15] Turning to the judge's charge, number 6/6 of process, the trial judge explained (at page 24) to the jury that evidence of the statement given by one accused to the police cannot be evidence for or against another accused. Accordingly what Cosgrove said to the police was not evidence for or against the petitioner. The jury was told in terms to ignore what Mr B said to them in relation to the Cosgrove interview. It was noteworthy that the trial judge also required to tell the jury to ignore sympathetic remarks about the petitioner's wife and children made by Mr B in his speech. The consequence of the inability to rely on the Cosgrove interview was the subject of the petitioner's proposed appeal. This is dealt with at paragraphs 53-59 of the respondents' SOR.

[16] It was submitted first that what Cosgrove said to the police was in line with the instructed defence and secondly that the respondents erred in taking the view that the relevant parts of what Cosgrove had said to the police were, in any event, before the jury. At paragraph 8 of the SSOR the respondents note that a recording of Cosgrove's police interview was led in evidence and included his position that the petitioner did not give him a lift and that he and Bain went to the Marmion pub on foot. Different parts of the interview contained Cosgrove's position about being coerced into his subsequent actions. The respondents record that the jury clearly understood that it was entitled to believe some parts and not others of Cosgrove's account and that in convicting the petitioner, they appear to have chosen to disbelieve the part of the Cosgrove statement which states that they went to the Marmion on foot. Paragraph 78 goes on:

"In the Commission's view it is no more likely that they would have accepted this had Cosgrove given evidence in person or had the required notice been lodged and [Mr B's] submissions about the interview been allowed to go to the jury. Accordingly and as set out in paragraph 115 of the SOR, the Commission is not satisfied that this would have materially affected the jury's verdict."

Counsel contended that this statement was wrong in law. Reference was made to McIntosh v HMA (No. 2) 1997 SLT 1320. In that case a trial judge had given a direction to the jury which he then realised was wrong. He called the jury back and gave them fresh directions. An appeal against conviction failed. The court expressed the view that it must be assumed that juries listen to and act upon directions given to them by a trial judge. Because the jury had been given clear directions to disregard what the trial judge had initially said regarding a judicial examination, the court was not persuaded that they could then have been confused about the matter. Accordingly, Mr Bovey submitted that the respondents had to assume that the jury had followed the trial judge's direction to ignore the Cosgrove statement in so far as it related to the petitioner. However, the matter did not end there as the respondents took the view that the trial judge had been in error in his direction and decided to re-examine matters to see if it had led to the trial being unfair. This was all set out in paragraphs 112-117 and 138-144 of the SOR. The respondents concluded, however, that notwithstanding what they perceived as a misdirection by the trial judge in this respect, it was not sufficiently material in the context of the proceedings as a whole to have deprived the petitioner of a fair trial. Senior counsel criticised this approach on the basis that once it was accepted that the failure to lodge a notice in terms of section 261(4) was a clear omission by Mr B, it was irrational to conclude that it would not have materially affected the jury's verdict. It was so irrational because first, the part of Mr B's speech relating to the Cosgrove statement was the only part that dealt with the "no involvement defence", secondly, he chose to do it that way and thirdly, the deference to the court practitioner's judgement was not relevant because it could not be said that this had been a matter of judgement, it was a clear error. Accordingly, it could be said that the petitioner's defence was not put which led to a probable miscarriage of justice. Whether or not the trial judge misdirected the jury was beside the point. A good line of defence did not get to the jury; that was justification enough for a reference. Central to the petitioner's argument was that the respondents had been wrong to regard the petitioner's defence as one of alibi. From the outset the solicitor advocate had been instructed to run defences of (1) no involvement and (2) alibi. Also, the respondents had been wrong to prefer their own judgement to the sift judges who had said there was no misdirection on the part of the trial judge. The error was assuming that the jury had rejected the part of Cosgrove statement that related to Bain and Cosgrove walking and not taking a lift from the petitioner. This all demonstrated a failure on the part of the respondents to consider the case as a whole.

[17] Having dealt with the two issues of substance, senior counsel made two further submissions. The first was that the respondents had failed to take a holistic approach to the petitioner's application generally. The overall test was the effect of any failures in representation on the accused's trial. There were peripheral matters about Mr B's representation of the petitioner that the respondents had looked at. At paragraph 119 of the SOR observations were made about his conduct. Quite apart from a potential conflict of interest Mr B had due to an association with the family of one of the victims, there was a suggestion (see paragraph 119 of the SSOR) that he had doubts about the petitioner's alibi defence. A very curious feature of the case was that there was a precognition noted by Mr B's instructing solicitor on 5 June 2006 and a note of a consultation on 25 October 2006 which directly contradicted the alibi defence. However, Mr B claimed to have been unaware of the terms of the precognition and the petitioner denied giving it. The respondents regarded these issues as background matters but it was submitted for the petitioner that these were issues properly of concern in assessing the defective representation case. At paragraph 20 of the SSOR the respondents stated that they have approached the matter of defective representation on a cumulative basis and that although some of the petitioner's submissions may have merit, they fail to make the various legal tests set down in the relevant case law. Accordingly they concluded that it was not demonstrated that there was any unfairness in the trial on an Anderson basis.

[18] There were other matters which the petitioner said he had raised with his solicitors which were not investigated. For example at paragraphs 36 and 37 of the SSOR, he claimed he had told his solicitors that he had visited the Super Bowl takeaway on the evening in question. While the police had sought CCTV footage from the Super Bowl takeaway, those representing the petitioner at trial had not contacted the manager of the takeaway. However, the respondents noted that this could not amount to inadequate preparation without being able to establish what information the manager might have been in a position to disclose. Further, at paragraphs 82-91, the respondents explore a contention for the petitioner that the defence ought to have pursued the potential importance of evidence by Susan Thom, the petitioner's mother-in-law. Mrs Thom said that she had called the petitioner's mobile phone at around 10.40pm on the night in question, 22 April 2006. She had spoken to the petitioner and to her 15 year old granddaughter in turn. Again, as the respondents understood after inquiry that there was no realistic prospect that the mobile call details in relation to Susan Thom's phone would still be recoverable, they decided that in accordance with the test laid down in McIntosh they could not be satisfied to the required legal standard that there was a failure on the part of those representing the petitioner to properly prepare his defence by reference to the telephone records of Susan Thom. Counsel for the petitioner's submission was that in relation to these two matters, even if they did not justify a reference on their own, they ought to have been taken into account in a holistic consideration by the respondents. Similarly, another conflict of interest matter, which related to Mr B having framed grounds of appeal himself after trial, ought to have been taken into account as a further background matter. By that time he had put forward a defence at trial which had been ruled out by the trial judge and he must have anticipated an Anderson appeal. He did not withdraw from acting immediately. This was not a case in which the Court had already heard an Anderson appeal before the application to the respondents. There had never been an opportunity for the Appeal Court to examine this case. The other ancillary matters such as the careless errors made by Mr B in his speech such as expressing views of sympathy that had to be corrected by the trial judge and the focus on the uninstructed "esto" case given the taxi driver analogy all created an overall failure to present the defence. In addressing each issue separately, the respondents had failed to adopt a coherent holistic approach.

[19] Senior counsel made the following six propositions:

1. The failings of representation complained of amounted to a failure to present the defence in a marked departure from what would be expected of a reasonably competent forensic practitioner.

2. This had deprived the petitioner of a fair trial which in turn may have given rise to a miscarriage of justice.

3. The petitioner's case therefore satisfied the requirements for reference in section 194C(1)(a).

4. The issue of the strength of the rest of the case against the petitioner fell to be decided in considering whether it was in the interests of justice that a reference should be made under section 194C(1)(b).

5. It would not be in the interests of justice to refer a case where there was no real possibility that the jury would have reached a different verdict but for the failure in presenting the defence.

6. The strength of the rest of the case against the petitioner was not such that there was no real possibility.

Reference was made to the UK Supreme Court case of McInnes v HMA 2010 SCCR 286 particularly at paragraphs 20, 24, 28 and 30 in relation to the requirement of a real possibility of a different verdict being reached by a reasonable jury. The respondents' answer to the petitioner's case appeared to be that the evidence against the petitioner was such that the test in McInnes was not met. The case was always a circumstantial one. Reference was made to Walker & Walker 3^rd edition page 91, paragraph 6.1.1 and Brown on Criminal Evidence and Procedure at page 9 in relation to circumstantial evidence. There were six pieces of circumstantial evidence relied upon by the Crown. First, the petitioner had access to the house from which the shotgun used in the murder and attempted murder at the Marmion pub was stolen. However, the evidence was that the petitioner was only on the roof of that house and several months had passed before the owner had noticed it was stolen. By the time that was noticed, the petitioner had only been present in the house for 9 days. Secondly, there was DNA evidence linking the petitioner to the mask that was wrapped up in the hooded garment found next to where Bain lay after the assault on him following the shooting incident. The mask recovered had both Bain's DNA and the petitioner's DNA on it. The petitioner's DNA was also found on a hooded top and a glove which had been worn by the co-accused. However, as recorded at paragraph 54 of the SOR there had been evidence of similar masks being purchased by the petitioner's brother and being in the petitioner's household as part of a prank, played with by the children and having been removed. They and the gloves and hooded top in question could on the evidence have lain in the petitioner's van for weeks. Thirdly, there was DNA evidence linking the petitioner to a jumper found in the flat of a Lisa McCraw which had been left there by Cosgrove. It was submitted that this circumstantial evidence was of little use given that the evidence also disclosed that the petitioner, Bain and Cosgrove and their families were all known to each other and had spent time in each other's homes. Fourthly, so far as the other DNA evidence including that on the glove was concerned, the same arguments applied. Fifthly, the most incriminating evidence against the petitioner was various text messages between him and Bain on the night of 22 April 2006. The petitioner's explanation for these was that they related to the purchase of a motor vehicle. The final text message from the petitioner to Bain stated: "am seen" at 10.58 pm. The petitioner's explanation to his advisers was that this was meant to say "im seek" and was intended for his wife, Jenna Young. The petitioner's position was that Mr B was aware of the explanation for the final text message but on his advice the petitioner had not given evidence which may have deprived him of the only opportunity to offer that explanation to the jury. Sixthly, the movements of the petitioner's van were important parts of the Crown's circumstantial case against the petitioner. These implicated the petitioner only if the CCTV footage timing was the later timing given by the police. Reference was also made to the advocate depute's speech at the trial, number 6/4 of process. There, a number of strands of circumstantial evidence were drawn together and the CCTV evidence and the text message evidence were worked in as part of the same picture. However, Mr Bovey pointed out that if the CCTV evidence of the van was recorded at the earlier time then the whole context of the text message evidence changes. Finally, there were certain contradictions in the alibi evidence. There was evidence that the petitioner had gone out of the house where he was looking after Ellis Thom around 8.30 pm which would not assist his defence. However, the loss of the alibi defence would not be demonstrative of guilt. In essence counsel accepted that there was circumstantial evidence capable of constructing a case against the petitioner but taken on its own and without the CCTV and Cosgrove statement issues, it could not be said that the cumulative effect of the remaining case was such that the result would necessarily have been the same. The respondents had failed to address the second leg of the test in section 194C, namely the "interests of justice" part, and had reached the wrong conclusion. A reduction of their decision was sought.

Submissions for the respondents

[20] On the central issue of the application of McIntosh v HMA 1997 SCCR 389, senior counsel for the respondents submitted that petitioner's counsel had cited no authority on which that case could be distinguished. McIntosh was clear authority for the proposition that in an Anderson appeal it is necessary to show what information would have been revealed by proper investigation. Cases such as Burzala v HMA had dealt with fresh evidence. In this case the issue was the lost evidence of the original CCTV recording. There was no authority for the proposition that because the evidence was lost one could avoid showing what it would have revealed. For example, if an appellant had an alibi in the form of an elderly member of their family to whom the previous representative had not tried to speak, if that relative died prior to an appeal on defective representation, the court would be entitled to ask what the relative would have said. If the answer to that was that the appellant did not know what she would have said, the court could properly conclude that there was nothing to indicate that the relative would have supported the appellant. In cases of this sort it was improper to speculate or to rely on a lost opportunity where the outcome of that opportunity was simply unknown. Thus the central plank of Mr Bovey's argument in relation to the CCTV evidence must fail in that the respondents were perfectly correct to rely on McIntosh. The respondents had also referred to the case of Lindsay v HMA 2008 JC 310. That case was a more recent re-statement that McIntosh remained good law in that an appellant in such a situation required to say what the outcome of the investigations he claimed should have been undertaken would have been.

[21] Mr Moynihan submitted that there were two short answers to the petitioner's points in relations in relation to the CCTV evidence. The first was that in the absence of any further information about the circumstances in which the later time came to be disclosed on the video tape, the petitioner could not say what preparation properly carried out would have disclosed. Accordingly, on the basis of McIntosh and Lindsay referred to above, the attack would be unstateable before the Appeal Court. Secondly, looking at the matter as one must from the perspective of a judicial review, no error on the part of the respondent could be identified. The respondents had taken considerable steps to investigate the issue of the CCTV evidence, including with the police. They had received confirmation that the police had checked the accuracy of the recording against the speaking clock and that was how the 58 minute discrepancy was discovered. The respondents were also advised that the later timing had been seen when the video was reviewed on other equipment (see number. 6/1 of process at paragraph 86). In judicial review terms, the respondents' factual conclusion on this would be amenable to review only if either they had no evidence to support it or if they had been unreasonable in a Wednesbury sense to rely on the material they had. It could not be absurd to rely on the only evidence available. The evidence about how the later timing had been ascertained as the correct one was uncontradicted evidence and there was no basis in law upon which the respondents' conclusion at paragraph 86 could be questioned. They were entitled to conclude that the CCTV was timed at 10.30-11.00 pm on the night in question. The two consequences of that were first, that it was consistent with the petitioner being in the vicinity of the Marmion public house at the time the crime was being committed and secondly, it was inconsistent with all parts of his alibi defence. At the time of the trial, the evidence was that the petitioner had been out of the house for a period from 8.30 pm. By the time the respondents were investigating the case and interviewed the petitioner, he appeared to have moved the time he was out of the house to 9.30 pm which coincidently was the earlier of the two possible CCTV times. However, if the police evidence was correct and the CCTV timing was 10.30‑11.00 pm, then both of the petitioners' stated positions were wrong.

[22] Senior counsel also developed a longer point in answer to the arguments about the CCTV evidence. He accepted that the respondents had not analysed the matter in the way he developed it but the material was all there to illustrate it. He argued that because of the concurrence of three sources of evidence pointing to the later timing, it could not be said that any further investigation would have been likely to point to the earlier timing being correct. The three sources were the police evidence, the evidence of Mr and Mrs Gordon, a couple standing at a bus stop on the night in question, and thirdly, the incriminating text messages by the petitioner. The evidence of Mr and Mrs Gordon, which is narrated at paragraph 14, page 5 of the SOR, fitted with the sequence of events being at the later timing in accordance with the police evidence. The incriminating text messages also coincided with the later timing of 10.30-11.00 pm. During that half hour there were text exchanges between Bain and the petitioner which the advocate depute at trial had persuaded the jury were no coincidence. (See number 6/4 of process at page 63-66). All of this showed that the respondents could never be said to have been unreasonable in concluding that the correct timing of the CCTV had to be taken as the later one.

[23] Mr Moynihan accepted that there was a difference between negating an alibi and showing involvement in a crime. However, it could not be said that even the earlier timing on the CCTV would be consistent with the alibi defence because that defence had changed over time. At the trial Ellis Thom gave evidence that the petitioner had been out of the house until "about 8.30 pm". Regardless of whether the CCTV was timed at 9.30 pm or 10.30 pm it would be inconsistent with that alibi evidence. The respondents looked at this issue in some detail at paragraph 117. They also provided a table of the summary of statements in relation to these matters. With one possible exception, all of the statements undermined the petitioner's defence of alibi. It was perfectly proper for that to be taken into account in considering the CCTV evidence. During the course of his submissions, Mr Moynihan had the compilation tape still available played in court. The two different timings are clearly shown on the screen as the petitioner's van is shown followed by two individuals going across the road in the direction of the Marmion pub. There is a discrepancy in that the later timing shows an ambulance still outside the public house at 00.27 which would appear to be wrong although it was taken from a different camera. The simple point remained that only the later timing was consistent with the evidence of Mr and Mrs Gordon and the incriminatory text messages.

[24] In relation to the arguments about the failure to put the statement of the co-accused Cosgrove to the jury, the argument of the petitioner had been that this amounted to a failure to advance a defence. In doing so, senior counsel for the petitioner had divided the defence into (1) non-involvement and (2) alibi. However, the respondents had not drawn such a distinction because the submissions made by the petitioner had always been to the effect that the defence was one of alibi. In the further submissions made to the respondents between the SOR and the SSOR, the following statement was made on behalf of the petitioner: "The applicant's defence was one of alibi, it was never anything else and no instructions were given to that effect." (See number 6/9 of process at page 12). The accused's involvement in a crime and disproving an alibi offence are necessarily linked. A prosecutor disproves the alibi by proving the commission of the crime. This was clear from the advocate depute's speech to the jury in the petitioner's case. DNA evidence, for example, was said to be inconsistent with the petitioner having been on a trampoline on the evening in question. Most importantly, the instructed defence was one of alibi and that was presented in accordance with instructions at the time.

[25] Senior counsel made eleven points on the miscarriage of justice test for a criminal appeal as set out in section 106(3) of the Criminal Procedure (Scotland) Act 1995. These were as follows:

1. In Nat Fraser v HMA 2011 SC (UKSC) 113 the UK Supreme Court discussed the different tests being applied as between section 106(3) cases and cases proceeding under devolution minutes. The case involved arguments about a failure to disclose evidence and the resultant possibility that a jury would have reached a different verdict. The Supreme Court asked the Appeal Court to consider whether a single test would be better.

2. In Brodie v HMA 2013 SCL 116 an appeal court chaired by the Lord Justice General (Gill) declined to consider the matter suggested by the UK Supreme Court indicating that flexibility was more appropriate because in some contexts it may be appropriate to apply the test in McInnes v HMA 2010 SCCR 286.

3. Accordingly, the case of Brodie v HMA resulted in there being some flexibility in relation to the test to be applied in any particular case.

4. The respondents have no concluded view on the general application of the McInnes test and do not express any such concluded view in their reasoning.

5. The case of McInnes v HMA 2010 SCCR 286 was decided in February 2010. The SOR in this case was dated November 2009 and predates the case of McInnes. Accordingly, it could not be said that the respondents applied the McInnes test. The test that the respondents applied was the test of materiality, namely whether the Cosgrove statement was material to the case. By the time the respondents produced the SSOR, the possibility of a different test had not been raised by the petitioner. Against that background, the SSOR adheres to the materiality test. Accordingly, there was no question of the wrong test being applied.

6. In DS v HMA 2012 SCCR 319 at paragraph 31 Lord Emslie discussed the two tests and suggested that the McInnes test may be a higher test for an appellant to meet than the materiality test. If that was correct, then the respondents had been more favourable to the petitioner than was strictly required.

7. The contrast between the two tests did not affect the outcome in this particular case because the test applied by the respondents was no less favourable to the petitioner.

8. On either view the test could not be said to be a low one.

9. It was clear from the case of Chief Constable of Lothian and Border Police v Lothian and Borders Police Board 2005 SLT 315 that it was not open to the respondents now to advance an argument about what they would have said had they applied the McInnes test. The question was rather whether the test affected the outcome of the respondent's reasoning and it was submitted that it had not.

10. It can be integral to the assessment of a miscarriage of justice that the evidence available was readily consistent with guilt. In some contexts the reviewing body had to look at the whole evidence. It would be different if the issue was one of juror impropriety or judicial bias. However, in a case such as the present one, the strength of the other available evidence did go to the issue of whether it could be said there had been a miscarriage of justice.

11. In this case the respondents had looked at the whole available evidence. In an Anderson context the respondents applied the case of Jeffrey v HMA 2002 SCCR 822. In that case the court had looked at the whole evidence available before deciding that there had been no miscarriage of justice in a situation where counsel had failed to put a statement to a complainer that was inconsistent with their evidence.

[26] The cases of Brodie v HMA and McInnes v HMA were discussed in more detail. In Brodie there had been a dock identification but the trial judge gave only a general direction about identification evidence saying nothing about the weaknesses of dock identification. The two questions to the Appeal Court were first, whether there had been a miscarriage of justice and secondly, whether there should be a single test as suggested by the Supreme Court. The Lord Justice General expressed the view that the existence of two tests caused no difficulty in practice and that the McInnes test, created in the narrower context of devolution issues, may not have the same flexibility of the application of the test of miscarriage of justice where the court took an overall view of the circumstances - see paras 42-43. The case of McInnes v HMA 2010 SCCR 286 involved the non-disclosure of statements by the Crown, resulting in an allegation of a breach of article 6 ECHR. The Supreme Court decided that the test that should be applied was whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict - see para 20 per Lord Hope and para 30 per Lord Rodger. Counsel submitted that in any appeal the evidence at trial had to be considered as a whole in order to determine whether or not there had been a miscarriage of justice and that to reach that conclusion there had to be a real possibility that a jury might have reasonably reached a different verdict.

[27] Turning to the way in which the respondents dealt with the arguments about the Cosgrove statement, Mr Moynihan referred to paragraphs 101-117 of the SOR. There was undoubtedly part of the Cosgrove statement that could undermine the Crown case in a way that would assist the petitioner and the Commission accepted that. The respondents gave detailed consideration as to whether the failure to use it had deprived the petitioner of a fair trial. Applying the case of Jeffrey v HMA the respondents concluded that, viewed in the context of the case as a whole, it could not be said that the consequence of the failure was an unfair trial. The matter was readdressed in the SSOR. The crucial passage appears at paragraph 78 where the respondents adhered to their earlier reasoning at paragraph 115 in the SOR. The test was still being expressed as one of "materiality". For the reasons already given it could not be said that the respondents had made any error of law in the way in which they had looked at the Cosgrove statement. So far as rationality was concerned, it was important to look at the summary of the case as presented by the respondents. In order to be satisfied that the petitioner's case should be referred, the respondents considered that it had to pass the materiality test. According to Lord Emslie in DS v HMA 2012 SCCR 319 the McInnes test could now be regarded as setting a higher threshold than the materiality test. However, that could be ignored because either the respondents correctly decided the matter on the lower test of materiality or they did not. Ultimately the case of McInnes was irrelevant.

[28] The essential question was whether the Cosgrove statement was integral to defence presented for the petitioner or was in some way a separate issue. Counsel for the respondents argued that alibi and non-involvement were integral to each other. Thus the CCTV evidence was relevant both to the discrediting of the alibi defence and to the Crown proving the petitioner's involvement. In any event, the petitioner's argument was that it could not be said that there was no reasonable prospect of a different outcome if the Cosgrove statement had been properly before the jury. That argument required to be examined on the lower test of materiality. The Crown case against the petitioner was fully set out in the SOR at paragraphs 10-23. This included the evidence of Mr and Mrs Gordon that at 10.50pm on the date in question they had seen two men walking into the Marmion pub after which they heard four loud bangs followed by the same two people being seen running out of the Marmion pub together carrying something that looked like a long pole or a gun. Then there was the items with the incriminating DNA found near the co-accused Bain, the petitioner's access to the property from which the gun that was used in the attack was stolen and then the movement of the petitioner's van as seen on CCTV and the incriminating test messages. So far as the DNA evidence was concerned, counsel pointed out that it did not assist the petitioner to say that any of the items on which the DNA of him or his co-accused was found could have been in his truck because of course the case against him was that he used that vehicle in the commission of the crime. Reference was made again to the speech of the advocate depute to the jury (number 6/4 of process). He had asked the jury to consider all the adminicles of evidence against Young together. He had pointed to the necessary correlation between the alibi defence and the petitioner's position that he was not present near the scene of the crime when the various adminicles referred to suggested that he was.

[29] So far as the respondents' reasoning on the Cosgrove statement was concerned (SOR paragraphs 101-115) counsel contended that it was easy to say that there was a rational legitimate view open to the respondents that the co-accused's statement would not have had a material impact on the jury. The proof that the petitioner was involved came primarily from the CCTV, the incriminating texts and the DNA. It could not be said to be irrational to conclude that the Cosgrove statement (a statement which clearly had been rejected in relation to his claim of coercion) in relation to walking to the Marmion pub would not have made any material difference. The SSOR at paragraph 73 confirmed that the respondents had considered the cumulative significance of matters and had not referred to the wrong test. Counsel for the petitioner's proposition had been that there was a domino effect if the CCTV evidence was wrong. However, if there was nothing to contradict the CCTV evidence as led at trial, then everything else was consistent. The petitioner could not be on a trampoline at home if his van was at the Marmion pub. If he had not been involved in transporting his co-accused, why was he texting Bain saying "am seen" and being in a position where his DNA was found on the glove that held the gun? Looking at the whole matter there was clearly a rational reason for the respondents' decision.

[30] On the criticism made of the respondents' comments that the jury appeared to have chosen to disbelieve Cosgrove in relation to walking to the Marmion pub, counsel submitted that this statement (SSOR paragraph 78) required to be read in context. The overall view was that the respondents were not satisfied that the test for defective representation was met looking at the case as a whole. Counsel acknowledged that it would have to be accepted that the jury ignored the Cosgrove statement when looking at the petitioner's case. But as a matter of consistency, a jury could not have convicted the petitioner if they had any doubt about his presence in the vehicle at the material time for a common criminal purpose as confirmed by the incriminating texts. So the implicit proposition in the Cosgrove statement that the petitioner was not involved must have been rejected by them. The respondents' statement that there must have been a rejection of what Cosgrove said amounted only to a statement that it would not have been possible to convict the petitioner if Cosgrove had been correct.

[31] In relation to what had been described by counsel for the petitioner as the "esto" argument presented by Mr B in his speech where he drew an analogy with a taxi driver, Mr Moynihan submitted that the petitioner's representative had been entitled to critique the Crown case in that way. That was consistent with instructions and involved simply explaining to a jury that even if they accepted that the petitioner's van was involved, it did not mean he was a knowing participant. It was because the jury had every reason to accept evidence additional to that of the presence of the petitioner's van that they convicted him. The prominence given to the "esto" argument in the speech to the jury was just a performance decision and was not a basis for an appeal. The overall question was whether the defence of alibi was presented and it was clear that it had been.

[32] In answering the criticism that the respondents had not taken a holistic approach, counsel submitted that the respondents had made an effort on every aspect of the case to look for evidence favourable to the petitioner but had concluded overall that there simply was not sufficient evidence to show that anything would have had a material effect on the outcome. The way that the respondents approached the issue of any misdirection by the trial judge showed that they were looking at every angle of the case to see if there was an arguable appeal. Their examination of what they perceived to be a misdirection by the trial judge was a separate matter because they had already accepted that the Cosgrove statement was not properly before the jury. Whether the fault for that was on the part of the petitioner's representative or the trial judge did not matter. The Commission had accepted that there had been a failure to give notice and the only issue was whether the trial judge should have pointed out that although the statement had to be disregarded as positive evidence for the petitioner, it could be looked at in relation to the matter of inconsistency if the Crown were relying on it for a conviction against the petitioner when the Cosgrove statement said that Bain and Cosgrove went to the pub on foot. In all the circumstances, senior counsel invited me to sustain pleas-in-law two and three for the respondents and refuse the petition.

Reply on behalf of the petitioner

[33] Senior counsel for the petitioner sought to make a number of points in reply. In relation to the legal background, Mr Bovey submitted that the word "may" in section 194C of the Act suggests that the respondents should give the benefit of the doubt to any applicant. He reiterated that a holistic view had to be taken. If there was defective representation that deprived the petitioner of a fair trial which in turn may have led to a miscarriage of justice, that was sufficient for a referral to the appeal court, which would then decide whether such a miscarriage of justice had actually occurred.

[34] In response to the arguments made on the CCTV issue, it was submitted that there were four points in support of the petitioner's argument that showed there had been a basis on which to challenge the CCTV evidence and accordingly a failure to do so. First, there was the existence of the two timings on the tape, secondly the instructions of the petitioner, thirdly the emergency vehicles on the CCTV shown as being present at the locus at 12.30am on the later timing, indicating that the earlier timing might be wrong and fourthly the lack of clear evidence in support of the second, later timing. In any event the cases of McIntosh and Lindsay relied on by the respondents were not cases of lost evidence or evidence lost in the hands of the authorities. Further, while it had to be accepted that the respondents would normally be entitled to respect for its fact finding, no stage was discernible in this case in which they decided that the later CCTV timing should be preferred. The discussion was limited to the perceived difficulties in challenging the later timing. The respondents viewed the available material and narrated the evidence but there was no endorsement as such of the police commentary in their report. It was clear that DC Paterson saw the new (later) time on the tape when he viewed it at the police office. Counsel initially submitted that there was no information about how it got there, but later acknowledged that Crown production 27 referred to the checking of the timing at the time of seizure of the tape. The evidence of the Gordons relied on by counsel for the respondents did not assist because they had not seen the petitioner's van. Also, the fact that the incriminating texts fitted with the later timing but not the earlier timing, did not mean that the later timing must be correct.

[35] On the issue of whether the defence was one of alibi, or of (i) no involvement and (ii) alibi, these had to be seen as distinct to some extent, because if the alibi witness changed her mind the no involvement part of the defence would still be there. It was accepted, however, that the alibi evidence at trial failed to support the earlier CCTV timing.

[36] In relation to the argument about the availability of other evidence pointing to guilt, it was accepted that the existence of such other evidence was relevant, but it was contended that if a case passed both the unfair trial and absence of other compelling evidence tests, there was no need to look further. In any event, the existence of other evidence against the petitioner wasn't something the respondents had focused on in their reasons. Insofar as the other evidence was relevant, it should be understood that the presence of the van near the locus at the material time was at the heart of the case against the petitioner. Thus, the clothes in the van were only problematic if the van was involved and absent the van at the locus at the material time the texts were not so incriminatory. The DNA evidence could not be established as contemporary and while it was consistent with guilt was also consistent with ordinary association with Bain and Cosgrove over time. The case would look very different without the CCTV. On the issue of the Cosgrove statement it should not be accepted that it would have made no difference. The only point of substance on the no involvement defence made in Mr B's speech to the jury related to the Cosgrove statement.

[37] In relation to whether the respondents should have considered the issue of what they perceived as a misdirection by the trial judge, it was submitted that it was difficult to accept the assertion that they had proceeded on the basis that the Cosgrove statement was completely excluded from the jury's consideration. The respondents state that the jury must have rejected the statement by Cosgrove that he and Bain went on foot. To some extent the reasons being put forward on behalf of the respondents now were not consistent with those given at the time of the decision and so could not be taken into account - Petition of Absalam for Judicial Review [2010] CSOH 109 at para 14 and Chief Constable of Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 at para 70. The statutory duty on the respondents to give reasons (section 194D 1995 Act) was important.

Discussion

[38] It is worth reiterating at the outset the parties' agreement that this case cannot be approached on the basis of making a decision about the correctness or otherwise of the substantive decision reached by the respondents. The decision can only be reduced on the recognised grounds for judicial review. That the court might have reached a different conclusion faced with the same material is not such a ground. The petitioner's central argument is that the respondents have erred in their approach to his application insofar as it raised issues of defective representation and that they have misunderstood or incorrectly applied the law. Accordingly, only if such an error or errors can be identified is the decision susceptible to review. I will address the two primary areas in which the respondents are said to have fallen into error in the same order as the submissions were presented.

The CCTV issue

[39] As narrated in the submissions, there were two different timings shown on the CCTV used at the trial. One fitted very well with the timing of the shooting and the other was 58 minutes earlier than that. The failure in representation was said to include both a failure to investigate the disparity between the two timings and a failure to challenge the police evidence at trial that the later timing was the correct one. Thus there were issues of both inadequate preparation and defective presentation. It seems to me that the respondents have been assiduous and scrupulously fair in their approach to and exploration of this issue. They have made clear that the situation is not a satisfactory one and that their investigations have been hampered by the destruction of the original tape. However, I cannot accept the starting point for the petitioner's argument, namely that there is a lack of clarity about how the "second timing" came to be on the compilation tape used in evidence. The respondents record (SOR paragraph 86) that they listened to the evidence from the trial of the witnesses who spoke to the timing to the relevant footage. In particular DC Paterson had confirmed that when each tape of footage was seized he had checked independently the accuracy of the times shown on the recording or recorder against Greenwich Mean Time. When he viewed the tape at the police office subsequently, both timings were shown and he was satisfied that the time shown at the bottom of the screen (the later time) was accurate. There was a brief attempt by Mr B to challenge DC Paterson in relation to the later timings, in that it was suggested that these "fitted" the Crown case after adjustment. More importantly, in answer to questions from the trial judge, DC Paterson confirmed that the correct times had been calculated by the police, that his evidence was based on those calculations and that those times took account of errors on the various CCTV tapes and systems. Thus there was clear evidence at trial in support of the later timing. In the absence of material available at trial suggesting that the police evidence was wrong, no further challenge could properly have been made. In any event, the defence of alibi as presented at trial was inconsistent with both timings. The issue of a lack of investigation of the matter, the failure in preparation, was the matter of greater concern to the respondents. In the SSOR at paragraph 63 it is made clear that the significance of the footage should have been apparent to Mr B and that the existence of an earlier timing shown on the screen that potentially could have contradicted the Crown case should have been subjected to analysis. The respondents' conclusion that, because there is no way of knowing now what such an analysis would have shown, the required legal standard as set out in McIntosh v HMA was not met, is attacked as erroneous. That requires an examination of the proposition for which that case is authority.

[40] As indicated at paragraph [6] above, the case of McIntosh v HMA 1997 SCCR 389 involved an appeal against conviction against very serious charges relating to conspiracy and acquisition of firearms intending to endanger lives. One of the grounds was that the instructing solicitor had failed to undertake adequate preparation. He had allegedly failed to precognosce certain witnesses and to take full enough information from the appellant. In rejecting the ground of appeal the court expressed matters as follows:-

"... the question which has to be addressed in an appeal on this ground is not confined to the conduct of the accused's counsel or his solicitor. The critical issue to which the ground of appeal has to be directed is what the effect of that conduct was on the defence. This cannot be discovered unless the appellant is in a position to identify the respects in which his defence was affected by this conduct. Where inadequate preparation is put in issue, as it has been in this case, the argument can take the appellant nowhere unless he can show what information would have been revealed if the preparation of the case had been conducted adequately. He has to be able to show what those witnesses who were not precognosced would have said if they had been precognosced and how that lack of information prejudiced the defence......Numerous complaints have been made about the conduct of the instructing solicitor, but they are left entirely in the air because there is no information to show what a more detailed preparation of the case...would have revealed."

This dicta must be read in the context of the established test for defective representation, namely that the conduct complained of must be such as to have resulted in a miscarriage of justice through depriving the accused of the right to a fair trial. Failures in preparation can only have such a result if it can be shown that the steps that should have been taken would have had yielded positive information for the defence. It cannot be the case that a miscarriage of justice might result from a failure to pursue an irrelevant or fruitless line of inquiry, hence the onus on an appellant to show what the enquiries would have revealed. In the more recent case of Lindsay v HMA 2008 JC 310, not only was McIntosh referred to with approval, but the court reiterated the proposition quite emphatically. The third ground of appeal in Lindsay related to the lack of forensic evidence for the defence in a murder trial in which the defence was one of incrimination and there had been significant bloodstaining which related to the appellant and the deceased. There was said to have been little, if any, cross examination of the scientific evidence led for the Crown at trial. It was contended that the appellant's representation had been defective due to a failure to instruct forensic evidence for the defence. It was specifically accepted at appeal that what any such forensic reports might have produced was purely speculative. The court expressed the following view on the matter:-

"This ground of appeal is unstateable. For such a ground to succeed the appellant would have to show that any such forensic reports would have shown specific outcomes. It is not sufficient to engage in speculation in this matter. The Advocate-depute referred us to the cases of McIntosh v HM Advocate (pp1319, 1320) and Ditta v HM Advocate which say precisely that. We are satisfied that these authorities are conclusive and this ground of appeal also fails."

[41] In my view, there is nothing in McIntosh or Lindsay to support the contention made on behalf of the petitioner that an exception should be made where the evidence that should have been investigated is lost, particularly where lost in the hands of the authorities. No other authority was cited in support of that argument. It may be said that a consequence of the rule in McIntosh is that an inability to carry out further enquiry makes it less likely that one can prove that a miscarriage of justice may have occurred and that puts someone in the petitioner's position at a disadvantage. However, I reject the suggestion that it follows that a miscarriage of justice is more likely to occur in such a situation. Without knowing what the additional information would have shown, the position on whether that information would have revealed a miscarriage of justice is entirely neutral. Any suggestion to the contrary would involve speculation. Logically, it should not matter how the evidence was lost. In any event there is no suggestion in this case that it was destroyed in an attempt to prevent it being "uncovered". I consider that the respondents were entitled to rely on the clear authority of McIntosh in concluding that in the absence of information about what more detailed preparation by Mr B in respect of the CCTV footage would have shown, no relevant failure could be identified. I do not consider that the respondents have fallen into error on this first matter. The complaint was that they applied the decision in McIntosh "over mechanically". The suggestion seemed to be that they used the authority as some kind of standard response when there had been a failure to investigate but the outcome had the proper investigation been undertaken was unknown. In my view such a criticism is unsound. Had the respondents ignored an authoritative decision the petitioner would have a basis for arguing that an error was made. The careful and appropriate application of an authority to one or more sets of facts by the respondents in this case is far from "over mechanical", it is the culmination of a thorough examination of the available material and consideration of the legal principles involved. It is noteworthy that the respondents conclude (SSOR at paragraph 87) that the emergence of two figures from Southhouse Terrace two minutes after the van turns into the road is perhaps even more important that the specific timing. Neither do I not consider that this reference discloses any error . The emergence of those figures fits with the other evidence in the case as recorded by the respondents in their review of the evidence led at trial, particularly the evidence of Mr and Mrs Gordon. The "earlier" timing of the CCTV was just as inconsistent with the petitioner's alibi evidence at trial as the later timing, the latter being consistent with the evidence of other witnesses. Counsel for the petitioner criticised a lack of clear support for the later timing in the respondents' reasoning. However, in the absence of contradictory evidence in relation to the correct timing on the compilation tape, the material produced to the court is the established evidence. In my view there was no need for the respondents to endorse it. It was for the petitioner to show that the accepted evidence was wrong and he could not do so. Returning to criticism levelled at the lack of robust cross examination of the police evidence on the CCTV issue, I am in no doubt that the decision not to attack that evidence was a reasonable judgement to have made, bearing in mind the problem with the alibi defence. There can be no basis for a referral where action or inaction falls within the scope of reasonable conduct of the case. In all the circumstances I do not consider there is any merit in the petitioner's first argument.

The Cosgrove Statement

[42] As indicated in the narrative of the submissions made, the argument in relation to the Cosgrove statement was that Mr B's failure to lodge the appropriate application to rely on the statement of the co-accused meant that a material leg of the petitioner's defence was not before the jury. The first point to note on this is that the respondents agreed that the absence of a section 261 notice was a relevant failure and it had to be examined to see whether it, on its own or cumulatively with other failures, deprived the petitioner of a fair trial. Mr B's position that he did not regard a section 261 notice as necessary was accordingly rejected and the issue of the materiality of the omission was explored. In the SOR at paragraph 115 the respondents note that, notwithstanding the omission in relation to lodging a section 261 application, the petitioner's defence of alibi was put before the jury and that there were various challenges made to the Crown case. Although the Cosgrove statement, which supported a position that he and Bain had gone to the Marmion Bar on foot and were not driven by the petitioner, could have been of some assistance to the petitioner's defence, the respondents were not ultimately persuaded that the inclusion of the statement as evidence for him would have materially affected the jury's verdict so far as he was concerned. When the matter was revisited in the SSOR (at paragraphs 72 - 78) the failure to lodge the required notice was again acknowledged and the respondent's conclusion remained the same, namely that it would not have materially altered the jury's verdict. However, there is also a suggestion that the jury could have believed some parts of the Cosgrove statement and not others and that they appeared to have chosen to disbelieve that part which suggested that he and Bain went to the Marmion on foot. The petitioner contends that this is illustrative of a misunderstanding of the applicable law on the part of the respondents. A further point is made in relation to the respondents' examination of what they perceived to be a misdirection by the trial judge.

[43] On the issue of whether or not Mr B's failure to get the Cosgrove statement to the jury as exculpatory evidence for the petitioner was a failure to put the defence such that would merit a reference on the basis that a miscarriage of justice may have occurred, I am of the view that no error in the respondents' approach can be identified. In order to argue that it amounted to a failure to put the petitioner's defence, his counsel was constrained to suggest that there were two separate defences, that of non-involvement and that of alibi. However, even leaving aside the clear statement on behalf of the petitioner to the respondents that the defence was never anything other than one of alibi (number 6/9 of process at page 12), the notion that there were two separate defences at trial seems to me to be an artificial construct. The defence was one of alibi, but as the Crown required to lead enough circumstantial evidence to prove the petitioner's involvement, the alibi had to be attacked as part of that. Another way of putting it is that the petitioner could have chosen not to run a positive defence but simply to attack the Crown case and argue that his involvement in the crimes had not been proved beyond reasonable doubt. Instead in making that attack he chose also to run a positive defence. On any view, that defence was put to the court at the trial. The attack on the Crown case and the positive defence of alibi were of course inextricably linked. The defence hoped that the Crown would be unable to prove the petitioner's involvement because there was some evidence that he had been at home. Accordingly, the failure to have the Cosgrove statement before the jury cannot be characterised as a failure to put the defence. It was a failure to introduce a piece of evidence favourable to the petitioner for the jury to consider. The respondents' analysis on this point included consideration of the case of Jeffrey v HMA 2002 SCCR 822. In Jeffrey there had been a failure at trial to put a prior statement to a complainer in attacking her credibility. While on appeal that failure was described as "unfortunate" it was emphasised that the critical question was whether, as a consequence of what happened, the appellant was denied a fair trial. In the event it had not so deprived him, because the introduction of the statement would have "extended but not changed the nature of the challenge of her evidence..." (paragraph 27). It is not difficult to understand why the respondents derived assistance from that case when considering this aspect of the petitioner's application. The contention for the petitioner at trial was that he was at home and not involved with Bain and Cosgrove. Some evidence was led in support of that in his defence and some aspects of the Crown case were challenged. Had the defence been able to rely on the part of the Cosgrove statement that claimed that he and Bain had gone to the Marmion on foot that would have added to the matters that were relied on for the petitioner. But that falls well short of the necessary conclusion that the petitioner was deprived of a fair trial as a result of the failure in question. Again the respondents applied the correct test conscientiously and properly and did not err in their approach.

[44] On the contention that the respondents misunderstood the law by suggesting that the jury must have disbelieved the part of Cosgrove's evidence that was exculpatory of the petitioner (see SOR at paragraph 78), I agree with the submission of senior counsel for the respondents that this must be read in context. It amounts to no more than a comment that, in order to have convicted the petitioner, the jury must have believed that he was involved in the crimes charged in a way that Cosgrove's statement disputed. They could not have convicted if they had a reasonable doubt about the petitioner's presence near the locus for a common criminal purpose. The jury had heard everything said by Cosgrove at police interview. They were directed to ignore only the evidence within the statement that went to the petitioner's defence and it must be assumed that they did so. The jury were dealing with three accused. They required to look at the Cosgrove statement in relation to the case against Cosgrove. It would appear that they rejected his statement. I do not consider that anything significant turns on this particular passage of the respondent's SOR. While the suggestion is not well expressed and could be misleading, it does not in my view amount to an error such that would vitiate the decision overall. The context is an argument about defective representation. The overall conclusion of the respondents that the failure did not deprive the petitioner of a fair trial is properly explained and there is no discernible misunderstanding of that test. I have discounted completely the issue of the respondents' view that the trial judge misdirected the jury as nothing turns on it. At most it is another example of the respondents' conscientious attention to detail and determination to explore all possible arguments favourable to the petitioner.

[45] I have considered carefully the submissions in relation to the tests of "materially affecting the jury's verdict" as opposed to a "real possibility that the jury would have reached a different verdict". However, again I do not consider any valid criticism can be made of the respondents' approach. They applied the test of materiality which, as Lord Emslie suggested in DS v HMS 2012 SCCR 319, might be the lower of the two tests. The issue was correctly characterised by senior counsel for the respondents as being whether the test applied by the respondents affected the outcome of their reasoning and in my view it did not.

The general criticisms

[46] So far as the other criticisms are concerned, what these amount to is a complaint that the respondents failed to take a holistic approach, that they erred by not weighing in the balance that there were points other than the two major issues already dealt with raised that related to the manner in which Mr B represented the petitioner. In my opinion these amount to no more than the type of "performance appraisal" that the court in Woodside v HMA made clear could not found a proper basis for a defective representation appeal. For example, Mr B's jury speech was analysed for the emphasis it placed on various issues. It was suggested that it had been improper to give the analogy of a taxi driver unwittingly driving the perpetrators of a crime to the locus. However, that part of the speech was clearly designed to persuade the jury that the Crown might have failed to prove the petitioner's involvement in a common criminal purpose even if they accepted evidence that he was at the locus. The emphasis placed on the "taxi driver" example falls squarely within the scope of a decision responsibly made in accordance with professional judgement that is exempt from a defective representation appeal. So far as the claim that there could be other evidence that supported the petitioners' alibi, eg, from the Super Bowl take away or from the mobile phone records of Susan Thom, the respondents quite properly applied the decision in McIntosh v HMA discussed above and decided that they could not regard a failure to pursue such enquiries as a relevant failure without knowing what those enquiries would have revealed.

Conclusion

[47] The respondents have conducted an exhaustive enquiry into the matters raised by the petitioner insofar as was possible given the lapse of time and consequent unavailability of certain material. There is little doubt that aspects of the petitioners' representation were somewhat unsatisfactory and the respondents acknowledge that. However, the role of the court in judicial review proceedings is not to allow an unsuccessful applicant to rehearse the same arguments made to the body in question in the hope that a different outcome might be achieved. The respondents have considered all matters put before them on behalf of the petitioner. They had material about the strength of the other available evidence against the petitioner when considering the points about the CCTV evidence and the Cosgrove statement. They were entitled to use that material as a cross check in coming to an overall view on whether a miscarriage of justice may have occurred. They do not appear to have erred in their approach and have given adequate reasons for their decision. The six propositions advanced by senior counsel for the petitioner (at paragraph 19 above) were all predicated upon there having been a failure to present the petitioner's defence. The respondents have explained fully why they do not consider that any individual failures amount to such a global failure. Further, I reject the suggestion that the respondents failed to address the interests of justice part of the test in section 194C. They did not require to do so given their conclusion that the first part of the test, namely that there may have been a miscarriage of justice, was not satisfied.

Decision

[48] For all of the reasons given, I have decided that the petition must be refused. Accordingly, I will refuse the prayer of the petitioner, sustain the respondents' second and third pleas in law and repel the petitioner's pleas. I will reserve meantime all questions of expenses.