APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 22
LadyPaton LadyClark LordPhilip	Appeal No: XC424/10 & XC402/10   OPINION OF THE COURT   delivered by LADYPATON   in the cause   WILLIAMLAUCHLAN AND CHARLESO’NEILL   First & Second Appellants;   against   HER MAJESTY’S ADVOCATE   Respondent:   _______

 

First Appellant:  G Jackson QC;  Fitzpatrick & Co

Second Appellant:  Carroll, Solicitor Advocate;  Drummond Miller

Respondent:  Bain QC;  Crown Agent

 

27 March 2014

Introduction
[1]        On 10 June 2010, in Glasgow High Court, the appellants were found guilty by majority verdicts of the following offences:

“(2)      on 21 June 1997 at [a flat in] Largs … you … having between 23 June 1994 and 21 June 1997 engaged in criminal sexual activity with [R] … then aged between 9 and 13 years, and knowing that [Mrs McG] his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did detain her against her will within said house … and thereafter assault said [Mrs McG], seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said [Mrs McG];

 

(3)        between 21 June 1997 and 1 September 1997, both dates inclusive, at [said flat] and elsewhere in Ayrshire meantime to the prosecutor unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you … did

 

(a)        remove the body of [Mrs McG], now deceased, from said premises;

 

(b)        transport said body to Largs Beach and conceal same under rocks there;

 

(c)        thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat;  and

 

(d)        deposit said bin or similar container and the body of said [Mrs McG] into the sea,

 

and this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice.”

 

[2]        The appellants were sentenced to life imprisonment with punishment parts of 26 years and 30 years respectively.  Each appellant was sentenced to 8 years imprisonment in respect of charge (3), to run concurrently.

[3]        The appellants appeal against conviction and sentence.  The appeals against conviction were heard on 6 February 2014.  Transcripts available to the appeal court included the advocate depute’s jury speech and the jury speech made on behalf of the first appellant. 

 

The circumstantial case
[4]        The trial judge’s report dated 14 September 2010, and an opinion of the Appeal Court in an application in terms of section 107(8) of the Criminal Procedure (Scotland) Act 1995 delivered by Lord Hodge dated 8 February 2012, record the circumstantial case relied upon by the Crown.  In 1994, Mrs McG’s marriage had broken down.  The two younger children initially lived with their mother in Rothesay.  As noted by the trial judge at page 4 of his report, Mrs McG was a loving mother who cared deeply for her children, and always tried to stay in regular contact with members of her immediate and wider family.  One of the two younger children R (a boy aged 10) began having behavioural problems resulting in a period in care.  He then went to live with his father in Glasgow.  However he always had contact with his mother.  When visiting his mother in Rothesay, R met the appellants.  Over a period of about three years between 1994 and 1997, the appellants “groomed” R such that he felt great affection for them, looked up to them, and regarded them as his heroes.  During this period, the appellants sexually abused R.  As noted in paragraph [14] of Lord Hodge’s opinion, social workers gave evidence that the appellants behaved as if they owned R. 

[5]        In June 1997, R and Mrs McG were staying in the appellants’ flat in Largs.  R was pleased with the arrangement, as he did not have to return to live with his father, and he knew that the two appellants would let him do as he pleased.  However his mother became increasingly unhappy.  There was evidence that she had, by this stage, found out about the sexual abuse of her son. 

[6]        Lord Hodge summarised the relevant evidence as follows.

“[14]    …  There was evidence from, among others, Mr Colin Higgins, which showed that each of the accused hated and disparaged Mrs McG.  There was evidence that Mrs McG had discovered that her son was being sexually abused and that the accused were concerned that she would report them to the police.  R spoke of an incident at the tennis court in Largs, two days before his mother disappeared, when Mr O’Neill had said to him that they would need to get rid of her or she would get the police onto them.  Mr Greig McKelvie gave evidence of an argument in the flat on the night Mrs McG disappeared (20 June 1997).  He heard her [shout at the appellants that they were a ‘fucking pair of poofters;  I know what youse are up to;  I’ll see you get what’s coming to you’ – trial judge’s report page 5].  She wanted to leave and return to Rothesay.  Mr Lauchlan had the key to the front door of the flat, and the door was locked to prevent her from leaving.  After Mrs McG had gone to bed in a distressed state, R overheard the appellants talking about getting rid of his mother and cutting her up.

 

[15]      There was evidence of two telephone calls after 1am on 21 June 1997 between a landline phone in the flat and the mobile phone which the two accused used.  From that it could be inferred that one of the accused within the flat was in contact with the other who was elsewhere.  Next morning, Mrs McG was not in the flat.  Mr McKelvie returned to the flat and found that the two accused were not there and their car was not parked behind the premises.  He came back later in the morning, by which time the two accused had returned.  He asked where Mrs McG was and the accused replied that they had woken at 5am to find the front door open and Mrs McG had disappeared.  The two accused also told R that his mother had gone and that they did not know where.  He noticed that their car was not parked in its usual position.

 

[16]      The Crown case was that Mrs McG had disappeared that night and that she was never seen again.  It was supported by evidence that she was a vulnerable woman of low intelligence who was very close to her family but who had had no contact with them after that night.  The Crown submitted that it was very unlikely that she would have left the area to adopt a new identity without contacting her family.  Mail addressed to her was left uncollected at her Rothesay flat.  She did not claim benefits in her name after that date and her benefits book remained unused in her flat.  It could be inferred that she did not return there after 21 June 1997.  The police also [gave] evidence of the unsuccessful enquiries which they had made in an attempt to trace her.  The Crown’s case was that the two accused had acted in concert to murder Mrs McG and had later disposed of her body at sea.

 

[17]      In about September 1997 the police arrested the accused after they discovered that they were harbouring R in their flat in Largs.

 

[18]      There was evidence that both of the accused had access to a boat, the ‘Andola’, at Largs Marina …  There was evidence that the accused had been on the vessel at sea.  A fisherman gave evidence that in 2005 he had caught in his nets a wheelie bin which contained a foul smelling bag at an area of the Firth of Clyde known as the Perch.  He had cut free and returned the wheelie bin to the sea without opening the bag, which he thought contained the carcass of an animal.

 

[19]      The Crown led evidence of several incriminating statements.  The first appellant Mr Lauchlan asked Mr Chris Lewis if he were questioned to say that Mrs McG had not stayed in the appellants’ flat.  Mr Lewis also testified that Mr Lauchlan had said that she had fallen off the Rothesay ferry.  Some years later Mr Lauchlan stated to Mr Keith Denneny that there had been a woman who was going to be a witness against him and Mr O’Neill and that they had got a boat, taken her out and fed her to the fish.  Mr Graham Beckett spoke of a drunken conversation in Gran Canaria during which Mr Lauchlan said something about a woman who lived near to a place where a black bag was found in water.

 

[20]      Ms Linda Buckley gave evidence that during a visit to Largs she heard Mr O’Neill ask her partner, John Hutton, how long it would take for a body dumped at sea to come ashore.  She noticed that both accused were anxious and agitated and they spoke to her of moving to England.  Mr Hutton had died by the time of the trial but in his police statement he was recorded as having said that Mr O’Neill had asked him ‘if a body fell in here, where would it finish up?’  Colin Higgins said that Mr O’Neill admitted and boasted on many occasions that he had killed Mrs McG, that he spoke of her in the past tense and said that she was feeding the fish in the Firth of Clyde.  Mr O’Neill had told him that Mrs McG’s body had been disposed of in the Perch.  Mr Higgins gave evidence that Mr O’Neill described Mrs McG as ‘a grassing bastard’.  He said that Mr Lauchlan was present when many of these statements were made and that he would tend to laugh when Mr O’Neill made them.  Mr Higgins also stated that Mr O’Neill had said on one occasion that he would be surprised by the number of bodies out there in the Firth of Clyde.  He also spoke of a remark by Mr O’Neill that the legal system of this country was stupid as, unlike in Australia, without a body there could be no crime.

 

[21]      Mr John Molseed gave evidence that, when they were in prison together, Mr O’Neill had told him that Mrs McG had been strangled to stop her going to the police and that her body had been put somewhere down at Largs beach under a sewer pipe.  Ms Joanne Young said that Mr O’Neill had told her about a woman who had been fed to the fish …

 

 

Evidence of sightings after 21 June 1997
[7]        At the trial, the advocate depute led the evidence of many witnesses who thought that they had seen Mrs McG on dates after 21 June 1997.  Some further witnesses giving similar evidence were led by the defence.  Summaries of these witnesses’ evidence can be found in Appendix I of the defence Form 15.15A and in paragraphs 22 to 35 of the advocate depute's speech (Crown Volume of Materials tab 40).

 

Detective Constable Benson’s evidence
[8]        Detective Constable Benson had been involved in the initial missing persons inquiry concerning Mrs McG.  Subsequently he was involved in investigations leading to a Proof of Life report.  The advocate depute stated that Detective Constable Benson gave evidence that his investigations had included the finding of Mrs McG’s benefits books in her flat in Rothesay, untouched, with benefits unclaimed since 21 June 1997;  negative responses (or no responses) from women’s refuges;  and relatives reporting no contact from Mrs McG for a considerable time, despite the fact that she was close to her family and, in the past, had regularly kept in touch with them.

[9]        The defence, in cross-examination, were severely critical of the Proof of Life investigation.  Points made included:  (a) the police did not make inquiries about an alternative name which Mrs McG used;  (b) only women’s refuges with web-sites or e-mail communication had been contacted:  that left large numbers of refuges uninvestigated, and in any event even of those contacted, there was only a 25 per cent response and then no follow-up;  (c) the police did not count a sighting of Mrs McG unless there were two witnesses;  and (d) the police contacted banking institutions although Mrs McG never had a bank account.

 

 

The trial judge’s question
[10]      Following cross-examination on behalf of the first appellant of Detective Constable Benson, and prior to the cross-examination on behalf of the second appellant, the trial judge asked the officer the following question:

“As a result of the investigation which you have set out for us, did you come to any conclusion?”

 

[11]      Detective Constable Benson replied:

“I concluded that [Mrs McG] was no longer alive.  I just couldn’t see how a person who was so reliant on benefits and other people could exist without them, I was very surprised that we wouldn’t find any trace of her if she was still alive.”

 

[12]      The trial judge then asked the solicitor advocate for the first appellant if he wanted to ask any further questions, which he did not.

[13]      The precise wording of the question and answer was not initially available at the appeal hearing.  As defence counsel explained, requests for transcripts of certain evidence had been refused.  However in the course of the advocate depute’s submissions, the bench requested that the precise words be traced and given to the court.  Over the lunch adjournment, the advocate depute traced the relevant passage on a hard disc, and at about 2 pm provided the court with an agreed transcript.

 

Jury speech on behalf of the first appellant:  reference to the concept of accessory after the crime
[14]      Mr McVicar solicitor advocate addressed the jury on behalf of the first appellant inter alia as follows:

“[page 5 line 8] …  The prosecutor spoke to you of this being a circumstantial case and a case of concert.  I’ve mentioned circumstantial evidence for the moment and I now pass on to look at the issue of concert.  Now, the example that’s always given … in courts is the bank robbery … [page 6]  Let’s say the bank robber, the getaway driver, has got a wife and he has a chat with his wife about how he’s going to go and pull another job.  So, she knows about what’s going to happen and then the chap who’s the driver of the car comes back to the house after the job’s been done and he’s got a gun …  So she’s got what you might describe as the murder weapon … And let’s say the wife gets rid of that gun because she disnae want her man to get into trouble.  What is the wife guilty of … in that analysis? … [page 7 line 13].  No-one … in their right mind would think that there was enough evidence to say that this lady is involved in the robbery at all, because what she does comes after the fact.  She might know about it.  She might even approve of her husband going out to earn his living by being a bank robber …  Her wrongdoing might [page 8] have been in concealing the crime after it’s committed, but in Scotland there is a rule of law which his Lordship might tell you about in due course which is that we don’t have accession after the fact.  You can’t be an accessory after the crime has been committed.  You can’t be an accessory to the crime that’s been committed already if your active participation in it comes after the event.  So, bear that in mind when you’re considering the case against William Lauchlan …  I ask you to apply your minds and your common sense to what the prosecution are saying in this case because you may think, after having heard all of my learned Advocate depute’s submissions, that you’re lacking something about William Lauchlan, and what you’re lacking is any evidence that he was actually involved in any meaningful or active way in anything that may have happened to [Mrs McG], if anything did happen to [Mrs McG] and that, you may think, is open to question on the evidence that you’ve heard anyway.  But even if the Crown are right in what they say to you, you may think, well, actually, that’s not good enough in a case where they have to prove that William Lauchlan is guilty of murder, a grave crime, beyond reasonable doubt …”

 

 

The judge’s charge
[15]      In his charge, the judge directed the jury inter alia as follows:

“[Expert evidence]

 

[page 50 foot]  I should say [page 51] that none of the police evidence amounted to expert evidence …

 

[Concert]

 

[page 76 line 22] …  Now as to the application of the doctrine of concert ladies and gentlemen I should say this.  In relation to a charge of murder, where a particular accused [page 77] by his conduct actively associates himself with a common criminal purpose which is, or includes the taking of human life or carries the obvious risk that human life will be taken, that accused may be guilty of murder even if the fatal injury is inflicted by the other person.  The common criminal purpose can be pre-planned or it can arise spontaneously, as I have already explained.  If you were satisfied that (a) the two accused were acting together with the joint purpose of committing the crime of murder or that there was a joint murderous attack on [Mrs McG], (b) their purpose involved killing her or carried an obvious and foreseeable risk that she would be killed, and (c) in carrying out the joint purpose, or the murderous attack one of the two killed her, then the other would be guilty of murder, if he actively associated himself with that joint purpose or the murderous attack by word or action.  So that is what I wish to say to you about the application of the doctrine of concert to the circumstances of the present case.  From all this, it will be evident to you ladies and gentlemen that, as Mr McVicar [counsel for the first appellant] correctly submitted, Scots law does not recognise the concept of a person being guilty of a crime merely because he has become an accessory after the fact, or anything of that nature …

 

[The issue of death]

 

[page 81 line 4] Ladies and gentlemen, it’s a matter entirely for you as to how you decide to approach the evidence in this case, but you may consider that a logical starting point would be to decide whether or not the Crown has proved that [Mrs McG] is dead.  I suggest this because, if you have a reasonable doubt as to whether the Crown has proved that she is dead, then obviously that is an end of the prosecution’s case.  In addressing this question, you will have to consider all the points made by the Advocate depute based on [Mrs McG’s] character, level of intelligence and lifestyle as well as matters such as her family relationships and financial circumstances.  The Advocate depute submitted, as you will no doubt recall, that [Mrs McG] was what she described, I think, as a vulnerable individual who would not have been capable of disappearing completely and of creating a new identity for herself.  On this issue, you will have to consider also the investigations carried out by the police, the results of which are drawn together in the Proof of Life reports.  Mr McVicar [for the first appellant] and Mr Carroll [for the second appellant] on the other hand submit that the Crown has not proved that [Mrs McG] is dead or at least they say that there is reasonable doubt as to whether she is alive or dead.  They rely amongst other things on the fact that [Mrs McG’s] body has never been found and on what were said to be serious [page 82] shortcomings and weaknesses in the police investigations.  In any event the defence argued these investigations were not conclusive on the issue as to whether she is alive or dead.  The defence pointed, for example, to the statistics showing that many women go missing and remain untraced.  It was by no means unrealistic, it was argued, to suppose that [Mrs McG] had decided, for whatever reason, to try to escape her various difficulties and to establish a new life for herself somewhere else than in the west of Scotland.  In the event that you were to be satisfied, ladies and gentlemen, that the Crown has proved beyond reasonable doubt that [Mrs McG] is dead, then the next question you might think arises in the context of the present case is whether the Crown has proved its case to the effect that she died on the 21^st or the 20^th of June 1997.  In this connection you have, of course, heard a good deal of evidence from witnesses who said that they saw [Mrs McG] alive at various times later, and in some cases a good deal later than the date on which the Crown alleges that she was murdered by the two accused.  If you accept any of that evidence, or if any of it leaves a reasonable doubt in your minds about whether [Mrs McG] died at the time alleged by the Crown, then acquittals must ensue …

 

[Rejection of sighting evidence would not mean the appellants were guilty of murder]

 

… [page 84 line 17] …  If, ladies and gentlemen, you reach the stage in your evaluation of the evidence of rejecting all the sighting evidence in the case, it does not follow that the [appellants] are guilty of murder or of disposing of the body.  As I have already explained more than once, when you reject evidence as unreliable, you simply put it to one side and disregard it.  If you do reach the stage of rejecting all the sighting evidence, you would still have to go on to consider whether on the basis of the other evidence in the case the Crown has proved beyond a reasonable doubt that the accused murdered [Mrs McG] and disposed of her body …

 

[Reminder that the defence position was that death had not been established, and that the police investigations were inadequate]

 

… [page 94 line 19] … [Mr Carroll, solicitor advocate for the second appellant] stressed the fact that [Mrs McG’s] body has never been recovered and that simple fact was of considerable importance.  The Crown had simply not proved that she was dead … [page 95] Mr Carroll submitted that suicide, accident or even foul play at the hands of another were all realistic possibilities, none of which could be discounted.  The Crown had failed to exclude them all.  The police, he contended, had formed a view about [Mrs McG’s] death at too early a stage and had disregarded much relevant information from a range of independent witnesses.  Mr Carroll, as you will recall, attacked the validity of the approach and the conclusions reflected in the two proof of life reports and he illustrated this particularly by reference to the evidence of the inquiry made of the Leith Women’s Aid Organisation and he said the one name the police had not checked which was a legitimate permutation was the name [MB], that name had been wrongly edited out of the search criteria and was an example of the weakness and inadequacy of the police investigations …

 

 

Grounds of appeal which passed the sift
[16]      The grounds of appeal against conviction which passed the sift were as follows:

 

Grounds of appeal for the first appellant

4.         It is respectfully submitted that the learned trial judge erred in eliciting highly prejudicial irrelevant evidence from a police witness that the Crown did not seek to elicit.  In particular when police officer Peter Benson gave evidence on 26^th May 2010 regarding the terms of the Proof of Life Report that he had been involved in compiling, the learned trial judge took from him that the conclusion of the police enquiries was that [Mrs McG] was dead.  This was not admissible evidence.  The Crown did not seek to lead that evidence and it is submitted that the trial judge ought not to have introduced that element in the case.  This was one of the crucial issues in the case and the police conclusion amounted to a matter of opinion which was not expert evidence.  There was no good reason why that conclusion should have been elicited by the trial judge and it was not a matter of clarifying any sort of ambiguity that arose from the evidence of the witness.

7.         It is submitted that the learned trial judge misdirected the jury in respect of the issue of accession after the fact.  Directions about this are given on page 77 at lines 16-20.  A possible interpretation of the evidence in this case was that the appellant had become an accessory after the fact of the commission of the crime in respect of charge 2 and the failure to give proper directions about what to do if that was the view that the jury took of the evidence was a material misdirection.  The jury should have been directed that if they had taken the view that the appellant had involved himself after the death of [Mrs McG] they should not convict in respect of charge 2.

 

Ground of appeal for the second appellant

12.       The learned trial judge misdirected himself in law during the course of the second phase of the trial dealing with charges of murder and attempting to defeat the ends of justice when he determined that he should ask and did ask the Crown witness Peter Benson to provide his opinion on a Crown production that was referred to as a “Proof of Life Report”.

 

i.          The witness had been presented to the jury as an experienced policeman of many years service and closely acquainted with the police enquiries into the alleged disappearance and murder of [Mrs McG].

ii.         The trial judge asked the witness, he having previously read the report, to give evidence of his “conclusion”.  The witness deponed that his conclusion was that she was dead.  This was inadmissible evidence.

iii.        The witness was not qualified to provide such an opinion.

iv.        As an officer with a close association to the case over many years, his evidence was likely to be viewed by the jury as highly persuasive.

 

Submissions for the first appellant
Ground of appeal 4
[17]      Senior counsel for the first appellant submitted that the trial judge had erred in eliciting prejudicial and irrelevant material when he asked the question noted in paragraph [10] above.  The officer’s opinion and conclusion was inadmissible.  It was a matter of opinion, and the officer was not an expert who could or should give opinion evidence.  The experienced advocate depute had consciously chosen not to ask the question.  One of the major issues in the case was whether or not Mrs McG was in fact dead.  That was a hugely important question, and a major part of the defence case was that she had not been proved beyond reasonable doubt to be dead.  It was a matter for the jury, and the jury alone, to reach a conclusion on the basis of the material before them including the evidence of sightings of Mrs McG by many witnesses.  Reference was made to Gage v HM Advocate 2012 SCCR 161 at paragraphs [21]-[22].

[18]      The Crown would no doubt refer to section 118(8) of the 1995 Act, as the question had not been objected to at the time.  But that approach was unfair.  The question came totally unexpectedly, and the answer came immediately.  To rely on section 118 was to advocate a counsel of perfection.

[19]      The authorities contained in the Crown’s case and argument (Wyngrove's Exr and other cases) did not help.  They were civil cases, concerning passengers on buses and the need for a central pole at the bus exit.  These were common sense matters.  By contrast in the present case there were huge bodies of evidence on both sides of the argument.  The issue was one for the jury to decide, and they had suddenly been faced with “police opinion”.  As for the case of White v HM Advocate 1986 SCCR 224, obviously a drug squad officer built up a body of experience over the years and could give evidence about an amount being “consistent with supply”, whereas the man in the street would not necessarily have that knowledge.  But in the present case, the question was whether Mrs McG was alive or dead:  that was a jury question.

[20]      The Crown would also contend that, esto inadmissible evidence had been allowed, there had been no miscarriage of justice.  But if ever there was an example of leading evidence which would influence a jury on something absolutely crucial, and which would usurp their function, this was it.  A mistake of such a quality did cause a miscarriage of justice.

 

Ground of appeal 7
[21]      There had been a misdirection relating to the concept of an “accessory after the fact” resulting from a lack of direction, rather than a misdirection.  The jury were not given sufficiently clear directions about what to do if they were satisfied that the second appellant had been involved in murdering Mrs McG, but were not satisfied that the first appellant had been involved in the actual murder, although involved at a later stage.  What was required was to spell out to the jury that if they were satisfied that a murder had taken place, but were not, on the evidence, satisfied beyond reasonable doubt that the first appellant had been involved at that stage (although they were satisfied that he was involved in the disposal of the body, charge 3) then they should have been told that in law they were obliged to acquit the first appellant of charge 2.  The deficiency in the charge on such a vital matter was a misdirection leading to a miscarriage of justice.

 

Conclusion
[22]      The conviction of the first appellant should be quashed.

 

Submissions for the second appellant
Ground of appeal 12
[23]      The solicitor advocate for the second appellant adopted the first appellant’s submissions relating to the judge’s question.  The detective constable’s reply was inadmissible and remained inadmissible even although there had been no objection.  In any event, the defence could not have objected to a question from the trial judge.  The judge was the master of the law.  As was clear from his report, the trial judge was of the view that the evidence thus elicited was admissible.  Thus if an objection had been made, the judge would have decided against the defence.  One could hardly invite the judge to appeal himself.

[24]      The officer’s reply was an important and highly influential piece of evidence.  The public had respect for what the police did.  This was a detective constable with 35 years experience.  While the defence had mounted a major attack on the methodology and approach adopted by the police in their inquiry, the judge, by eliciting inadmissible evidence, had set the collective opinion of Strathclyde police against the defence challenge to the Proof of Life report.

[25]      Expert evidence could be led only if the tribunal of fact could not reach a view without it (Gage v HM Advocate):  but Detective Constable Benson was not an expert.  He should not have been asked the question.  His answer rendered the trial unfair.  The conviction of the second appellant should be quashed.

 

Submissions for the Crown
Grounds of appeal 4 for the first appellant and 12 for the second appellant

(i)         Section 118(8)

[26]      The advocate depute referred to section 118(8) of the 1995 Act and to McFadden and Spark v HM Advocate 2009 SCCR 902 paragraphs [20]-[21].  No objection had been taken to the judge’s question at the trial.  It was not now open to the appellants to argue that the question elicited inadmissible evidence.  Only in very exceptional circumstances could the effect of section 118(8) be elided.  Such circumstances did not exist in the present case.  Grounds of appeal 4 and 12 should be refused.

(ii)        In any event, the evidence elicited was admissible

[27]      The advocate depute submitted that there was no hard and fast rule that one had to be an expert before giving an opinion.  There were circumstances where an ordinary witness could give his opinion.  Detective Constable Benson was an officer engaged from the outset of the search for Mrs McG.  He had been involved in the missing person inquiry.  He had then been involved in the murder inquiry.  He had interviewed several witnesses, including witnesses to sightings of Mrs McG.  He had interviewed members of Mrs McG’s family.  He had compiled a picture of a vulnerable woman with significant problems, who relied extensively on her family to get through difficult times, and whose only source of income was state benefits.  She had never had a passport;  she could not drive;  she found it difficult to write.  It was in that context that Detective Constable Benson gave his own view.  His personal opinion, as an individual, was admissible – not only as an ordinary witness but also as a police witness with years of experience who had been involved in the inquiry about Mrs McG (cf Wyngrove’s Exr v Scottish Omnibuses 1966 SC (HL) 47;  Macphail, Evidence (1987) paragraph 17.02;  Walkers, Evidence (2^nd ed) paragraph 16.2;  Hewat v Edinburgh Corporation 1944 SC 30, at page 35;  White v HM Advocate 1986 SCCR 224).   Detective Constable Benson supported his personal view by giving reasons, explaining that Mrs McG was a woman so reliant upon state benefits and other people that she would leave some trace if she were alive. The circumstances in the present case were different from those in Gage v HM Advocate.

(iii)       In any event, there had been no miscarriage of justice

[28]      The advocate depute further submitted that there had, in any event, been no miscarriage of justice because the judge’s directions to the jury made it clear that it was for them to decide (on the basis of the whole evidence) whether or not Mrs McG was dead.  Reference was made to the charge, page 51, 52 lines 13-16, 81-82, 84, 94 lines 21-24, 95 lines 4-21.  The trial judge gave very balanced directions, referring to the competing prosecution and defence arguments, and emphasising that the decision whether or not Mrs McG was dead was one for the jury – based on the whole evidence (and not just the evidence of one police officer).  Thus even if the question should not have been asked, any prejudice which might have been caused had been cured by sound, fair and balanced directions.

[29]      The advocate depute further submitted that there had been a compelling circumstantial case against each appellant, quite independently of the police officer’s personal view.  The circumstantial evidence strongly demonstrated that Mrs McG was deceased.  Reference was made to the summaries of the evidence contained in the trial judge’s report and Lord Hodge’s opinion.  The evidence relating to sightings by witnesses who thought that they had seen Mrs McG after 21 June 1997 had to be assessed by the jury.  The Crown’s position was set out in the advocate depute’s jury speech, paragraphs 22 to 35.  Furthermore the jury had to be satisfied beyond reasonable doubt not only that Mrs McG was dead, but that she had been murdered.  In view of the compelling nature of the circumstantial evidence led by the Crown, there was no real possibility that, had the question not been put and answered, the jury might have come to a different verdict.

 

Ground of appeal 7 for the first appellant
[30]      The trial judge had given clear directions on concert.  The jury knew that the first appellant had to have been acting along with the second appellant at the time of the murder.  Reference was made to the charge at pages 76-77 and 85-88.  Any further direction was unnecessary.

 

Discussion

The judge’s question

(i)         Whether the evidence elicited was inadmissible

[31]      Detective Constable Benson was a police officer who had been involved in the search for Mrs McG from an early stage.  He had carried out, or been involved in, most of the means of investigation contained in the Proof of Life report.  The investigations had taken years.  He explained his involvement, the nature and extent of the investigations, and the results of the investigations, to the jury.

[32]      In our view, Detective Constable Benson had become particularly knowledgeable about Mrs McG.  He had acquired extensive knowledge about her, her lifestyle, habits, friends and family – knowledge more comprehensive (so far as this court is aware) than any shared by any other police officer or member of the public.  He was peculiarly well-placed to give information about Mrs McG’s life and lifestyle, her family, friends, addresses at which she lived, activities in which she participated, her means of subsistence, and other such intimate details.  With that background, together with his involvement in the search for Mrs McG, we consider that the jury were entitled to know what he, personally, thought about whether she was currently alive but untraced, or no longer alive.  His view on that matter was not (as was suggested by counsel and the solicitor advocate for the appellants) the view of “Strathclyde Police”:  it was simply the conclusion about a matter of fact which he, as an experienced police officer involved in the search for Mrs McG, had reached after several years.  That was in our opinion admissible evidence (cf Wyngrove’s Exr v Scottish Omnibuses 1966 SC (HL) 47 at page 55;  Macphail, Evidence (1987) paragraph 17.02;  Walkers Evidence (2^nd ed) paragraph 16.2;  Hewat v Edinburgh Corporation 1944 SC 30).  We consider that the question asked in the context of this case is distinguishable from a question directed to a police officer or any other non-expert witness, seeking a personal opinion about whether a particular crime had been committed and/or the identity of the person responsible.  In our opinion, questions directed to elicit such evidence are generally accepted (correctly) as objectionable, and the evidence would be regarded as inadmissible.  The personal opinion of non-expert witnesses should rarely be elicited in evidence and in many circumstances will be objectionable and of no evidential value.  The fact that an experienced advocate depute chose to present the witness’s evidence in this case without asking for his own view shows commendable caution, but does not, in our opinion, detract from the fact that the evidence was admissible in the particular circumstances.  The reasoning given by the officer, based on the factual results of his investigations, explained the view which he expressed.

[33]      The weight which the jury gave Detective Constable Benson’s evidence was entirely a matter for them.  The jury had to take into account the absence of a body as proof of death (a major matter);  the many witnesses speaking to apparent sightings of Mrs McG alive and well after the date of death contended for by the Crown (20-21 June 1997) which might tend to suggest that the Crown were wrong about the date of death and might therefore be wrong about the death and the mode of death;  and the absence of any forensic evidence which might assist in determining the question of death.  Detective Constable Benson’s personal view was just one of many matters which the jury had to take into account.  The judge emphasised this in his charge.

[34]      We are not therefore persuaded that the judge, by asking the question he did, elicited inadmissible evidence.

 

(ii)        Section 118(8) of the Criminal Procedure (Scotland) Act 1995

[35]      Even if we were wrong in that conclusion, section 118 of the 1995 Act provides:

“No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act –

 

(a)        shall be quashed for want of form;  or

 

(b)        where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to –

 

(i)         the relevancy of the indictment, or the want of specification therein;  or

 

(ii)        the competency or admission or rejection of evidence at the trial in the inferior court,

 

unless such objections were timeously stated.”

 

As was observed by the appeal court in McFadden and Spark v HM Advocate 2009 SCCR 902:

“It is … of the utmost importance for the efficient administration of justice that objections to the admission of evidence are taken timeously, for example at a preliminary hearing, or during the course of the trial.  Only in very exceptional circumstances will the appeal court sustain arguments relating to admissibility or to the leading of evidence said to render the trial unfair where no objection was taken at or before the trial.”

 

[36]      We agree.  In the present case, both appellants had experienced lawyers representing them.  Objecting to the eliciting of evidence said to be inadmissible is one of the major functions of defence lawyers at trials.  Lawyers can, and do, object to questions put by a judge, if necessary making subsequent supporting submissions to the judge outwith the presence of the jury.  Even if their objection came too late to stop a prompt answer, or even if their subsequent arguments were unsuccessful at that stage and the judge was not dissuaded from allowing or asking the question, the defence would then be able to rely on their objection in any future appeal, thus avoiding the effect of section 118(8).  If their arguments were successful, either the evidence would not come out, or (if the answer had been given) the judge might be requested to give the jury specific directions to put certain evidence out of their minds.

[37]      In the result we have not been persuaded that any exceptional circumstances have been demonstrated in the present case, such as to avoid the effect of section 118(8).

 

(iii)       In any event, whether any miscarriage of justice

[38]      In our opinion, the Crown had established a strong circumstantial case against the appellants.  We refer to the trial judge’s report and to the appeal court opinion delivered by Lord Hodge (paragraph [6] above).  There was evidence of a motive affecting both appellants, a shared plan to kill Mrs McG, her detention in the flat on the night she disappeared, the telephone calls in the middle of the night and the inferences which could be drawn, Mrs McG’s sudden disappearance, the unlikelihood that she was capable of creating a new life for herself without leaving any traces, the appellants’ access to a boat, and their subsequent incriminating statements.  As against that Crown case, as the judge reminded the jury at page 94 of his charge, was the complete absence of any dead body;  the substantial number of witnesses who thought that they had seen Mrs McG after 21 June 1997;  the weaknesses and omissions in the police investigations;  all the possible alternatives such as suicide, accident or foul play by some other person, which could have occurred.  Detective Constable Benson’s personal opinion following upon his involvement in investigations about Mrs McG was just one of the many pieces of evidence which the jury had to take into account.  The trial judge emphasised on more than one occasion in his charge that questions as to whether Mrs McG was dead, when she had died, and whether she had been murdered, were entirely for the jury.

[39]      In the result therefore, in view of the whole evidence, and the fair and balanced directions in the trial judge’s charge, we have reached the view that even if we were wrong in relation to admissibility and section 118(8), there was no real possibility that, had the question not been put and answered, the jury might have reached a different verdict.  Accordingly we are not persuaded that there was any miscarriage of justice.

 

(iv)       Conclusion
[40]      In the result we are not persuaded that there is any merit in ground of appeal 4 for the first appellant, or ground of appeal 12 for the second appellant. 

 

The judge’s direction concerning an accessory after the fact
[41]      It was made very clear to the jury in the speech made by Mr McVicar on behalf of the first appellant precisely what being an “accessory after the fact” means (see paragraph [14] above).  The example of a bank robber and his wife was put before the jury to draw their attention to the fact that the robber’s wife could not, in the circumstances outlined, be found guilty of the robbery.  A parallel was drawn to the appellants, the message to the jury being that they might find the second appellant guilty of the actual killing of Mrs McG, but they might conclude that the first appellant was only concerned in subsequent matters (for example, disposing of the body).

[42]      The judge’s charge followed upon the defence speeches.  At that time, the defence speeches would be fresh in the jury’s mind.  Against that background, the judge gave the jury appropriate directions concerning concert.  As a postscript, he referred back to Mr McVicar’s message about Scots law not recognising the concept of a person being guilty of a crime “merely because he has become an accessory after the fact or anything of that nature”.  The charge therefore approved and endorsed Mr McVicar’s illustration and submission to the jury on that matter, and emphasised that the only proper approach to concert which the jury could adopt was as set out by the judge in his charge. 

[43]      In our opinion, in these circumstances, the directions about concert were neither incomplete or inaccurate.  There was no need for the judge to rehearse Mr McVicar’s example again.  The jury were given clear and accurate directions on concert, with a brief addition confirming the first appellant’s defence presentation to the jury on this matter.

[44]      We are not therefore persuaded that there is any merit in ground of appeal 7 for the first appellant.

 

Decision
[45]      For the reasons given above, we refuse the appeals against conviction.  The appeals against sentence are continued to a date to be fixed.