APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Brailsford Lord Marnoch	[2012] HCJAC 40 XC388/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by JOHN CRAWFORD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Allan QC, et Anderson; Bruce & Co.

Respondent: A F Stewart QC, A D; the Crown Agent

6 March 2012

[1] On 28 February 2011, at the High Court in Glasgow, the appellant was found guilty along with a co-accused, Paul Kiernan, of murdering Kevin Black on 1 March 2010 at 54 Dunkeld Place, Hillhouse, Hamilton, by repeatedly striking him on the head and body with a bottle and a knife or knives. The jury also found that the appellant had previously evinced malice and ill will towards the deceased. Both accused and the appellant's son John James Crawford were found guilty of attempting to defeat the ends of justice by: (a) instructing the destruction of clothing and shoes, (b) washing a pair of jeans, (c) contacting the emergency services using a disguised voice, (d) disposing of the knives, (e) pretending clothes had been washed by the appellant's sister, and (f) setting fire to clothing. On the 13 May 2011 the appellant was sentenced to life imprisonment with a punishment part of 19 years in respect of the murder charge and a concurrent sentence of 2 years imprisonment in respect of the subsidiary charge.

[2] The facts and circumstances, as ascertained from the trial judge's report, can be enumerated as follows: (1) There was a background which involved the appellant seeking payment of a debt which he considered due by the deceased in relation to drugs transactions; (2) the appellant was looking for the deceased during the course of the day, sometimes in the company of the co-accused Kiernan; (3) when visiting one potential address for the deceased, the appellant had left a message for him that he (the appellant) was "not a happy bunny"; (4) at about 4:45pm the deceased and a former girlfriend had accompanied Mr Kiernan from the deceased's mother's house to Mr Kiernan's flat at 54 Dunkeld Place, where the appellant also happened to be; (5) it was not long after their arrival at the flat that the attack on the deceased took place, because sometime before 6pm, the appellant, using a disguised voice, contacted the emergency services and said "we'll leave the close door open. He's stabbed wae a 8 inch kitchen knife several times, okay"; (6) the deceased was found by paramedics at around 6pm slumped in a chair. He had 7 stab wounds, including the fatal one to the carotid artery, and also bruising and cuts to the ear. The blood around him suggested that the fatal attack had started and ended in the vicinity of the chair; (7) broken glass from a Buckfast bottle, notably a large piece on a window ledge behind the deceased, had the deceased's blood on it. The neck of this bottle was found separately in a bin outside the flat. This neck had the appellant's DNA (and not Kiernan's) on it; (8) a sheath originally designed for holding a sgian dubh was found in the room with DNA from both the appellant and Mr Kiernan on it, indicating that both had at some point handled that sheath; (9) on the appellant's leather jacket there were blood spots from the deceased, which meant that it (and presumably the appellant) had been within 1 or 2 feet of the deceased when he had been assaulted by some blow into wet blood; (10) a pair of jeans was found in a bath in a neighbouring flat to which the appellant had had access. The appellant had been identified as wearing jeans on the particular day. The jeans in the bath had traces of the deceased's blood on them; (11) on the evening of the incident the appellant admitted to his former girlfriend that he had been present at the time of the murder, although he qualified that by saying that he not taken any active part in the assault. This was something that he repeated in interviews with the police on 2 March and 4 August 2010; (12) at about 6 pm the appellant had been seen leaving the flat carrying something smaller than a can or bottle in a carrier bag; and (13) the appellant had instructed his son to destroy certain items of clothing.

[3] Against this evidential background, the appellant contended, first, that the trial judge had erred in repelling a submission of "no case to answer". The submission had been that the Crown had advanced its case upon two bases: first, that the appellant and his co-accused had been acting together, having formed a common plan to kill the deceased: and, secondly, that the appellant had alternatively joined in an attack on the deceased whilst in the flat and was thus guilty by reason of spontaneous concert. The court was reminded that the law in relation to concert had been set out by the Lord Justice General (Cullen) in McKinnon v HM Advocate 2003 JC 29 (at para [32]). Where homicide was committed by another, the question for the Court was whether the accused was proved to have associated himself with that other's murderous purpose. The essence of the submission was that there had been insufficient evidence to establish that the appellant had subscribed to such a purpose. The evidence could not instruct the conclusion that the appellant had been guilty of murder: (a) on the basis of antecedent concert: or (b) on the ground of spontaneous concert. In particular there had been no evidence that there was a prior agreement that weapons would be used or that either one or other of the accused had a weapon before the deceased went into the flat. As regards spontaneous concert, there was no proper basis upon which to infer that the appellant had actively participated in the killing of the deceased. The various adminicles of evidence had done no more than establish that the appellant had been in the flat at the time when the assault had been committed.

[4] The Advocate Depute maintained to the contrary that: (a) the background of a dispute between the appellant and the deceased; (b) the appellant looking for the deceased along with the co-accused that day; (c) the co-accused accompanying the deceased to the flat where the appellant was also to be found; and (d) the timing of the assault shortly thereafter all entitled the jury to conclude that there had been antecedent concert. There had certainly been enough evidence to infer spontaneous concert. In relation to the latter, the jury would have been entitled to take into account the post mortem actions of the appellant in determining the level of the appellant's participation (Cameron v HM Advocate [2011] HCJA 29, L J-C (Gill) at para [38], following Beggs v HM Advocate 2010 SCCR 681).

[5] The Court agrees that there was sufficient evidence for the jury to infer either antecedent or spontaneous concert on the appellant's part. The starting point has to be the background of the appellant being unhappy with, and looking for, the deceased, sometimes in the company or Mr Kiernan, in connection with a debt. It was the appellant's dispute with the deceased, for whatever reason, and not Mr Kiernan's. Mr Kiernan had ultimately found the deceased at the deceased's mother's house and had accompanied him to his own flat, where the appellant was already in place. There followed shortly thereafter a prolonged and savage attack on the deceased, who appears to have been seated at the time of the initial and the sustained elements of that attack. The appellant accepted that he had been there at the material time. There was evidence from the forensic findings that both a bottle and a knife had been involved in the assault. The appellant was linked to the bottle and to a knife sheath by his DNA. The pattern of blood spots on his jacket put the appellant in very close proximity to the deceased when he had been under attack. His subsequent actings involved the disguising of his voice when speaking to the police and a reference to persons in the plural. He had also made conscious efforts to conceal or destroy his clothing or evidence of blood on it. The jury were entitled to take into account the use of two weapons in the attack and to hold that participation in a knife assault by, for example, using a bottle to strike the victim on the head was sufficient to demonstrate spontaneous concert in a murderous assault at the very least. They were also entitled to take in to account, when assessing the nature and extent of the appellant's involvement in the attack, his post mortem actions. In all these circumstances the court is bound to agree with the trial judge that there was sufficient evidence for the jury to infer concert on an antecedent or spontaneous basis. As either of these bases would have been sufficient to repel the "no case answer" submission, the first ground of appeal falls to be rejected.

[6] The second ground of appeal was that, in any event, there was insufficient evidence to entitle the jury to conclude on the basis of antecedent or spontaneous concert that the appellant had subscribed to a common criminal purpose. The trial judge had misdirected the jury by suggesting to them that it was open to them to convict the appellant on either basis. It was accepted in submissions, as it was bound to be, that this ground essentially flowed from the first ground. If there were sufficient evidence of both antecedent and spontaneous concert, this ground was bound to fail since the trial judge's directions had been consistent with that sufficiency. The trial judge had directed the jury that, if they were satisfied that one or other of the accused had killed the deceased, both would be guilty of murder if each had actively associated himself with a joint purpose of murdering the deceased. If one had not so associated himself, or had participated in a less serious purpose, they could find that person guilty only of culpable homicide. He then went on to deal with the alternative of spontaneous concert in a situation where only one accused had used a knife to murder the deceased. He directed the jury that, if the other had known that a knife was going to be used and nevertheless carried on participating in the attack, then he too could be found guilty of murder. However, he continued (charge p 19):

"But if you thought the man with a knife, you are satisfied you can hold who that was, but the other did not appreciate fully the use of a knife and thought it was only going be used to inflict a less serious injury then that other one would lack the intent necessary for murder, but could be convicted of culpable homicide. If you thought that whoever used a knife lacked the intent needed for murder, you could only convict him of culpable homicide and you could convict the other of no more than culpable homicide. It is quite complicated, but I think when you think about it I hope it makes reasonable common sense."

The terms of these directions were readily understandable to the jury and the court considers that they were sufficiently clear in explaining to the jury about the consequences of not finding antecedent or spontaneous concert proved. The second ground of appeal, accordingly, also falls to be rejected.

[7] In all the circumstances, this appeal against conviction is refused. However, it should also be recorded that the grounds of appeal which were argued were those contained in the Note of Appeal dated 15 August 2011, for which leave had been granted on 8 October 2011. It can be seen that, for whatever reason, a considerable length of time had lapsed since the dates of conviction and sentence. On 23 November 2011, the appellant had lodged his case and argument in terms of Rule 15.15A of the Act of Adjournal (Criminal Procedure Rules) 1996. At a Procedural Hearing on 7 December 2011, the court was advised that the appellant was ready to proceed to a hearing on these grounds and a one day hearing was accordingly fixed. On the day before that hearing, the appellant lodged an application to amend the Note of Appeal by adding third and fourth grounds. On the basis of this application, the appellant moved the court to discharge the hearing of the appeal so that further investigations into these matters could be carried out.

[8] The first proposed new ground of appeal proceeds upon a lengthy narrative which commences with an assertion that the appellant did not receive a fair trial because evidence of his interview with the police had been wrongly admitted in evidence. There had been an objection taken to this evidence at the trial on the basis that the appellant had been a detained suspect at the time of his interview. Evidence of two police officers had been led by the Crown in the course of a "trial within a trial", after which the trial judge had repelled the objection on the basis that, as the officers had testified, the appellant was not a suspect at the time but had been interviewed as a witness.

[9] It is only towards the end of the application that the ground of appeal translates itself into a contention of defective representation at trial. This is based upon assertions that: the appellant's former agents had "apparently" not carried out "Due and diligent enquiries" to obtain evidence, notably police records, that the appellant had been detained at the relevant time. The appellant's counsel is also criticised for not calling the appellant to give evidence in the trial within a trial.

[10] The second proposed new ground of appeal also commences with an assertion that the appellant did not receive a fair trial and is again based upon alleged defective representation. This time the allegation is that trial counsel had not moved for a separation of charges in order to eliminate what was, for the appellant, hearsay evidence emanating from statements made by the appellant's son (and co-accused) which, it was said, were prejudicial to the appellant.

[11] There was no explanation for these grounds of appeal being tendered on the eve of the appeal hearing beyond an account of it having taken some time to obtain a statement from the solicitor who had acted for the appellant at the time of his interview and who had been contacted initially with a view to his consulting with the appellant. It was said that he had later been stood down on the understanding that the appellant was being treated as a witness.

[12] The statutory time limits provided for in the Criminal Procedure (Scotland) Act 1995 are generous to appellants. They allow a convicted person two weeks from the date of sentence to lodge a formal Notice of Intention to Appeal (s 109(1)) and a further eight weeks in which to lodge a Note of Appeal (s 110(1)(a)) which is to contain "a full statement of all grounds of appeal" (s 110(3)(b)). Since the sentence is often pronounced some time after the conviction, this allows an appellant a significant period of time in which to formulate any arguable grounds of appeal against that conviction. Indeed, in this case, the Note of Appeal was lodged almost six months after the conviction. If leave to appeal is granted, an appellant then has a further generous period of 42 days (Act of Adjournal Rule 15.15A(4)) in which to lodge his written case and argument setting out the facts and propositions of law to be advanced under each ground of appeal for which leave has been given.

[13] It is important, if the system of criminal appeals is to be operated efficiently and effectively and to provide justice for all, including appellants, that the statutory time limits are complied with. The statutory provisions do not expressly provide for the amendment of a Note of Appeal but that is permitted under section 110(4) of the 1995 Act by the court granting leave to amend (see Practice Note (No 2 of 2010)). Given the generous nature of the time limits already outlined, the court will require an adequate explanation, if there is any, for the lateness in tendering a ground of appeal. It will not be inclined to allow amendment as a matter of routine. It will be increasingly unlikely to allow amendment after the expiry of the period allowed for lodging a case and argument and even more so on the eve of an appeal hearing. However, if, notwithstanding the absence of any explanation, the court considers that there is clear merit in a new ground, it is likely to allow the Note of Appeal to be amended in the interests of justice.

[14] In this case, there is no adequate explanation for the tendering of a late ground. Given the test which requires to be met for success in an appeal based upon defective representation as set out by the Lord Justice-Clerk (Gill) in Grant v HM Advocate 2006 JC 205 (at para [21] et seq), it is not immediately obvious what merit there is in the proposed new grounds. In Grant, the seriousness of making allegations of the type now advanced, especially in the absence of any objective support, was emphasised. But in any event, it is difficult to see how the new grounds, even if well founded, meant that the applicant's defence was "not presented to the court". In these circumstances the court refused the application to allow the Note of Appeal to be amended.

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