Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY SITTING AT GLASGOW
	[2014] HCJAC 88
Lord Justice General Lord Menzies Lord Turnbull	Appeal No: XC225/13 XC226/13 OPINION OF THE LORD JUSTICE GENERAL   In the appeal against conviction and sentence by   (1) PHILIP WADE; and (2) COLIN COATS Appellants;   against   HER MAJESTY’S ADVOCATE Respondent: _______

For the first appellant:  Allan QC, Jones; Paterson Bell, Edinburgh

For the second appellant:  Jackson QC, Jackson; Drummond Miller, Edinburgh

For the Crown:  Solicitor General (Thomson QC), Barron;  Crown Agent

 

29 July 2014

 

Introduction

[1]        On 8 April 2013 the appellants were convicted, subject to one deletion in the case of Wade of the following charges:

“(006) on 14 April 2011 at Broomhill Path, Glasgow or elsewhere in Glasgow, to the Prosecutor meantime unknown, you DAVID PARKER, PAUL HAMILTON SMITH, PHILIP HOWARD WADE and COLIN COATS did, whilst acting together, assault and abduct Lynda Palmer Spence of Zefaj, 29 Whitworth Drive, Glasgow, seize hold of her, detain her against her will, compel her to enter a motor vehicle, drive her to Meadowfoot Road, West Kilbride, Ayrshire and thereafter between 14 April 2011 and 28 April 2011, both dates inclusive, at Flat 4, 114 Meadowfoot Road, West Kilbride you did detain her against her will, compel her to wear glasses with taped lenses, repeatedly place tape over her mouth thereby restricting her breathing and ability to call out for assistance, tie her to a chair with tape, rob her of an iPhone and SIM card, repeatedly punch her on her head and body, repeatedly demand that she provide you with bank account details and information about financial dealings in which you believed she was involved, sever the tip of a finger from her hand, burn her on her hand with an iron, repeatedly strike her on her body with a golf club or similar implements, cut off her thumb with loppers or similar instrument, and crush her toes with loppers or a similar instrument, all to her severe injury, fail to obtain medical treatment for her and on 28 April 2011 at Flat 4, 114 Meadowfoot Road, West Kilbride or elsewhere in Scotland by these means or by means to the Prosecutor unknown you did assault and murder her and you PHILIP HOWARD WADE and COLIN COATS did previously evince malice and ill will towards her;

 

you PHILIP HOWARD WADE did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court;

 

you COLIN COATS did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court;

 

(007) between 14 April 2011 and 2 June 2011, both dates inclusive, at Flat 4, 114 Meadowfoot Road, West Kilbride, 5 Carsehead, Dalry, B&Q Abbotsinch Industrial Estate, Renfrew Road, Paisley and elsewhere in Scotland you DAVID PARKER, PAUL HAMILTON SMITH, PHILIP HOWARD WADE and COLIN COATS, having committed the crime libelled in Charge (006) hereof and being conscious of your guilt in respect thereof, did, whilst acting together

 

(a)        At Flat 4,114 Meadowfoot Road, West Kilbride

            (i) wash and clean said Flat;

(ii) apply bleach and other chemicals to the flooring, walls, items of furniture and fittings;

(iii) lift and remove carpets and floorboards;

(iv) remove a chair, cutlery, crockery, bedding and clothing;

(v) lay new floorboards; and

(vi) cut the head off the remains of Lynda Palmer Spence or Zefaj, 29 Whitworth Drive, Glasgow, and remove her remains from said flat

 

(b) at 5 Carsehead, Dalry and elsewhere repeatedly set fire to, burn and attempt to destroy items which had been removed  by you from Flat 4, 114 Meadowfoot Road, West Kilbride;

 

(c) at a location or locations in Scotland, presently unknown to the Prosecutor

(i) destroy, dispose of or conceal the remains of said Lynda Palmer Spence or Zefaj;

(ii) destroy, dispose of or conceal mobile telephones and telephone SIM cards;

and

(iii) destroy, dispose of or conceal motor vehicle registered number DV56 FKW;

 

(d) on 25 May 2011 at B&Q, Abbotsinch Industrial Estate, Renfrew Road, Paisley, purchase floorboards, nails, paint, white spirit and sandpaper and this you did with intent to prevent the police and the Procurator Fiscal from conducting an investigation into the death of said Lynda Palmer Spence or Zefaj, and to destroy physical, biological and telecommunication evidence implicating you in the crime libelled in Charge (006) hereof and to avoid detection, arrest, prosecution and conviction in respect of Charge (006) hereof and this you did with intent to defeat the ends of justice and did attempt to defeat the ends of justice;

 

you PHILIP HOWARD WADE did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court;

 

you COLIN COATS did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court …

 

The appellant Wade was convicted on charge 7 subject to deletion of the words “cut the head off” in charge 7(a)(vi).

[2]        The second appellant was also convicted of the following charges:

“(009)  on various occasions between 26 April 2011 and 30 October 2011, both dates inclusive, at Vanilla Café, 16 Norby Road, Broomhill, Glasgow, McMillan Emporium, 6/8 Norby Road, Broomhill, Glasgow and elsewhere in Glasgow, Erskine, Renfrewshire and Ayrshire, with the intention of menacing John Glen, c/o Strathclyde Police, Glasgow and putting him in a state of alarm and apprehension of physical injury to him and his family and for the purpose of extorting money from him you COLIN COATS did (a) falsely state to him that he owed you money and demand money from him, place him in a state of fear and alarm for his safety and force him to drive you in various roads in Scotland;  (b) on 26 April 2011 in Broomhill, Glasgow, present to him a human thumb, state to him that it belonged to Lynda Palmer Spence or Zefaj. 29 Whitworth Drive, Glasgow, induce him to believe that you and others known to you were capable of violence and threaten to kill him;  (c) on 15 August 2011 at the house occupied by you at Flat 2/1, 21 Broomhill Path, Glasgow, induce said John Glen to enter said house and did, by way of threats, refuse to allow said John Glen to leave said flat, adopt a threatening stance towards said John Glen, induce him to remove all his clothing, search said clothing, demand that he obtain money for you, threaten violence to said John Glen and to his family and did detain him against his will;  (d) on 29 August 2011 by means of an electronic message sent by you to said John Glen, threaten said John Glen with violence and place him in a state of fear and alarm;  and by said means did induce said John Glen to deliver to you £10,000 of money and you did extort £10,000 of money from him;

 

you COLIN COATS did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court;

 

(010)    on various occasions between 4 May 2011 and 8 June 2011, both dates inclusive at Bierstube Public House, 87 Kilmarnock Road and McDonalds Restaurant, Crow Road, both Glasgow, and elsewhere in Glasgow and by means of telephone text and instant messages and telephone calls, with the intention of menacing Patrick James Burns, c/o Strathclyde Police, Glasgow and putting him into a state of fear and alarm and apprehension of physical injury to him and for the purpose of extorting money from him, you COLIN COATS did threaten him that unless he paid you sums of money you would cause said Patrick James Burns serious physical harm, threaten to kill him, threaten to set fire to said public house owned by him, threaten to shoot him or have him shot and by said means did induce him to deliver to you £4,200 of money and you did extort £4,200 of money from said Patrick James Burns;

 

you COLIN COATS did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court;

 

(011) on 18 May 2011 at Dudley Drive, Glasgow, you COLIN COATS [did assault] Patrick James Burns c/o Strathclyde Police, Glasgow, threaten to stab him with a pen, threaten him with violence and rob him of a motor vehicle registered number SD04 MWK; you COLIN COATS did commit this offence while on bail, having been granted bail on 14 March 2011 at Kilmarnock Sheriff Court.”

 

[3]        The co-accused David Parker and Paul Harrison Smith pled guilty during the trial to assault to severe injury and to attempting to defeat the ends of justice.  Their pleas were accepted by the Crown.  They were then called as witnesses for the Crown.

[4]        The trial judge’s sentencing statement was as follows:

“Philip Wade, there is only one sentence I can impose on you for the murder of Lynda Spence and that is imprisonment for life.

 

The law requires me to set a minimum period that you must serve in prison as the punishment part of your life sentence.  In setting that period, I take account of the fact that the murder of Miss Spence was a truly monstrous and barbaric crime, which the Court must regard as an offence of the utmost gravity.  It was very seriously aggravated by the fact that it was preceded by prolonged captivity and by violent and merciless torture.  You were motivated by greed and a thirst for revenge against Miss Spence, whom you held responsible for causing you or your close friend, Colin Coats, financial loss.  The evidence shows that you are a violent and dangerous man with no respect for human life or for the values of a civilised society.

 

In fixing the minimum period in your case and in the case of your co-accused Colin Coats, I take account of the many aggravating features of the case.  I can identify no mitigating considerations.  In the circumstances, I consider that you Wade must serve at least 30 years in prison as punishment before the possibility of release on licence may even be considered by the Parole Board for Scotland.  I emphasise that the period of 30 years is only a minimum period, which I am required by law to set at this stage.  You will not necessarily be released after 30 years and may indeed never be released.  That, as I say, will be a matter for others to decide.  I shall attribute a period of 6 months to the bail aggravation.

 

On charge 7 I sentence you to imprisonment for 10 years.

 

These sentences will run concurrently and be backdated to 1 November 2011.

 

In your case Colin Coats, I again impose a sentence of imprisonment for life on charge 6.

 

On the basis of the extensive evidence I heard, I am left in no doubt that, as between you and Wade, you were the more dominant and controlling personality.  You were, I consider, the prime mover behind the abduction, torture and murder of Miss Spence.

 

In addition, you have been convicted of two serious charges of extortion and one of assault and robbery.

 

You are apparently a man of some intelligence, who previously attained a measure of success in your life, but I am convinced that you have a manipulative, devious and cruel personality, allied to a marked tendency to resort to violence when you perceive that you have been thwarted or to advance your own interests.  In my considered view, you are a highly ruthless and extremely dangerous man.

 

In the circumstances, the punishment part in your case must, in my judgment, be greater than in Wade’s case.  Taking account of the appalling circumstances of your crimes, I consider that you must serve a minimum period of 33 years in custody.  I shall attribute 6 months of that period to the bail aggravation.

 

On charge 7 I sentence you to imprisonment for 10 years.

 

On charge 9 I sentence you to imprisonment for 8 years.

 

On charge 10 I sentence you to imprisonment for 8 years

 

On charge 11 I sentence you to imprisonment for 6 years.

 

All these sentences will run concurrently with the sentence on charge 6 and be backdated to 1 November 2011.”

 

[5]        The appellants appeal against conviction on the following grounds, namely (a) that the trial judge erred in refusing an objection to a line of evidence on the basis that no preliminary objection had been taken to the evidence before trial; (b) that the Crown failed to make timeous and full or adequate disclosure to the defence that the deceased had been recruited as a covert human intelligence source by the Scottish Crime and Drug Enforcement Agency (SCDEA) one month before she disappeared and two months before her disappearance was reported to the Police; and that the non-disclosure of that evidence so prejudiced the defence that there was a miscarriage of justice. 

[6]        Both appellants appeal against sentence.

 

The statutory provisions

[7]        Section 79A of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides inter alia as follows:

“79A.-(1)  This section applies where a party seeks to raise an objection to the admissibility of any evidence after-

 

(a)  in proceedings in the High Court, the preliminary hearing; or

(b)  in proceedings on indictment in the sheriff court, the first diet.

 

(2)        The court shall not, under section 79(1) of this Act, grant leave for the objection to be raised if the party seeking to raise it has not given written notice of his intention to do so to the other parties.

 

(3)        However, the court may, where the party seeks to raise the objection after the commencement of the trial, dispense with the requirement under subsection (2) above for written notice to be given.

 

(4)        Where the party seeks to raise the objection after the commencement of the trial, the court shall not, under section 79(1) of this Act, grant leave for the objection to be raised unless it considers that it could not reasonably have been raised before that time.”

 

The evidence

[8]        Lynda Spence (the deceased) was reported to be missing in April 2011.  Her body has never been found.  An extensive police investigation established that after her disappearance the deceased had made no contact with any public authority or similar organisation, or with her parents with whom she had a close relationship.  The Crown case was that the appellants had abducted, tortured and murdered the deceased with the assistance of their co-accused. 

[9]        The deceased was a 27 year old self-employed financial adviser.  She ran a mortgage broking and property rental and sale business in Glasgow.  Her business affairs were chaotic.  She was in debt.  She had become embroiled in fraudulent activity for which she was being investigated by the police.  She had a girlfriend, Aliona Codreanu, with whom she was living at the time of her disappearance.  There was evidence that Ms Codreanu was a prostitute who was associated with an Albanian criminal called Sokal Zefaj.  The deceased knew Zefaj and may have been involved in criminal activity with him.  The police believed that he was involved in drug trafficking and money laundering.  Shortly before she went missing the deceased agreed to assist the SCDEA as a covert human intelligence source (CHIS).  She was to provide intelligence on Zefaj and other suspected criminals. 

[10]      The disclosure of the deceased’s role as an informant was made to the defence two weeks before the trial.  Counsel for the first appellant took evidence from a police officer involved in the handling of the deceased in this role.  Certain evidence about this was agreed by way of joint minute.

[11]      The appellants had a strong motive to commit the crimes libelled.  The second appellant was introduced to the deceased by a business associate.  He gave her a number of short-term loans amounting to several thousand pounds.  By late 2010 or early 2011 he considered that she owed him about £85,000.  The second appellant’s business relationship with the deceased became social.  He invested all of his money with her.  She and a business partner presented him with an investment project at Stansted airport.  They invested his money in it without his authority.  It transpired that the Stansted airport scheme was an elaborate device invented by the deceased to keep the second appellant at bay when she was unable to repay his loans.  The deceased obtained forged Danish Government bearer bonds and gave them to the second appellant as purported security for his investment in the Stansted transaction.  The second appellant uncovered the deceit at about the end of March 2011.  He became extremely angry with the deceased, as did the first appellant who was his close acquaintance.  It transpired that she had spent and failed to repay money that the second appellant had given her on loan from his parents’ funeral fund.  She had also spent around £2000 which had been lent by the first appellant’s brother.  She had also received about £700 from the first appellant’s brother to buy presents for the first appellant’s children when he was on remand in prison.  She failed to do so. 

[12]      There was a recording of a telephone call that the first appellant made to his brother from prison on 15 January 2011.  The first appellant encouraged his brother to “get heavy” with the deceased, adding that he too had fallen out with her.  Other recorded telephone calls showed the appellants’ hatred towards the deceased.  The Crown’s position at the trial was that the appellants were trying to uncover the extent of the deceased’s deception and to recoup some of the money from the Stansted deal.

[13]      The co-accused gave damning evidence against the appellants.  They provided graphic descriptions of the appellants’ torture of the deceased. 

[14]      There was evidence of numerous conversations between the appellants and their associates in the aftermath of the murder.  These were spoken to by Mark Asbury and Lee Winyard, who were friends of the first appellant. 

[15]      Winyard said that around 29 April 2011 the appellants visited him.  The first appellant told him that some men had come to see him about money that he owed them.  One of them was left to watch over him while the other went to get the second appellant.  The first appellant told Winyard that he had cracked this man with a baseball bat.  He had then finished him off with a hammer and had chopped him up.  The second appellant was listening to this conversation.  They asked Winyard if they might borrow his father’s boat, working boots and a shovel.  Winyard thought that they wished to dispose of a body.

[16]      Asbury spoke of a conversation between him and the first appellant during the summer of 2011.  He said that the first appellant had been drinking heavily.  He told Asbury about a man from Liverpool who had been sent to “do in” the appellants.  There had been an incident in a stairwell that had ended when the first appellant disabled the man with a Taser gun and the second appellant stabbed him.  The first appellant said that they had cut up the body, bagged it and put it in the car.  The first appellant told Asbury that he had been to see Winyard about borrowing a boat in order to throw the body off the boat.  The first appellant was raging with Winyard for refusing to allow them to go out in the boat.  Asbury also recalled that something was said about the deceased’s having sent the man from Liverpool.   

[17]      When Winyard gave evidence, this line of evidence was objected to on behalf of the first appellant on the basis that the statements related to a specific account of an incident involving the killing of a male individual from Liverpool in a specific way.  There was nothing in the indictment relating to that homicide.  It was irrelevant, prejudicial and inadmissible.  The trial judge repelled the objection. 

 

The trial judge’s reasons
The objection point

[18]      In his Report the trial judge gives his reasons for repelling the objection as follows:

“Under section 79A(4) of the 1995 Act, I was not empowered to grant leave for the objection to be raised at the trial unless I considered that it could not have been raised before that time.  It was not in dispute that the Crown had disclosed the evidence in issue to the various accused in the form of witness statements in the months leading up to the trial.  In these circumstances, I did not consider that there was any basis on which I could properly hold that the objection could not have been raised before the trial.  Plainly it could have been.  The suggestion that Wade’s advisers could not be expected to have anticipated that the evidence would be led because it was obviously irrelevant seems to me to be unconvincing and circular.

 

In any event, I considered that the evidence was obviously relevant to proof of the charges on the indictment and that the objection to its admissibility was misconceived.  It concerned a statement by Wade that he had recently killed someone and that he needed to find a way to dispose of the body.

 

I saw no ground on which it could be plausibly maintained that Wade was disadvantaged or prejudiced by the absence of a charge on the indictment reflecting this particular line of evidence.  As I have already explained, the evidence had been disclosed well before the trial and it was not disputed that Wade had been given advance notice of it.”

 

The disclosure point

[19]      In relation to the disclosure point the trial judge reports as follows:

“It is correct that part of the appellant’s case was that there were a number of other persons who could have had reason to harm Miss Spence; these included Sokal Zefaj.

 

It is also correct that the Strathclyde Police officers involved in the investigation of the disappearance of Miss Spence were not made aware that she was in the process of being recruited by the SCDEA as a CHIS. 

 

I believe that the disclosure of evidence on this aspect of the case may have only been completed shortly before the trial began, but I am not aware of the details.  In any event, the evidence was available to the defence by the time of the trial and was brought out fully. 

 

Obviously, I am not in a position to comment on what may have happened since the conclusion of the trial.”

 

The appeals against conviction

The objection point

[20]      The first ground of appeal relates to the refusal of the objection to the line of evidence regarding the appellants’ purported murder of a man from Liverpool.  Counsel for the appellants accepted that the evidence about this was disclosed to the defence in the form of witness statements in the months leading up to the trial.  They submitted that the defence should not be required to take formal objection to every possible adminicle of evidence in police statements that may contain inadmissible material.  They could not have expected that such evidence would be led by an experienced and responsible prosecutor acting within the accepted rules of evidence.  They submitted that in the circumstances, the trial judge exercised his discretion unreasonably in disallowing the objection.  He ought to have read down section 79A in terms of section 3 of the Human Rights Act 1998 as allowing him to consider the objection.  The overriding duty of the Court was to ensure that the appellants had a fair trial.  Counsel for the appellants submitted that the trial judge erred in law in holding that the evidence of the alleged admissions was admissible.  The subject matter of the admissions was irrelevant to any matter on the indictment.  The jury were not entitled to hold that the appellant was somehow cryptically referring to the killing of the deceased and the disposal of her body.  The evidence materially prejudiced the appellants in their defence.  There was a miscarriage of justice (Brodie v HMA 2013 SCCR 23).  In the absence of the evidence objected to there would have been a different verdict (McInnes v HMA 2010 SC (UKSC) 28). 

[21]      The Solicitor General submitted that the Crown’s position had been clear throughout.  There had never been any murder of an unknown male; but the context, timing and actions of both appellants in this chapter of evidence entitled the jury to infer that what the appellants were seeking to do was to dispose of the deceased’s remains.  No objection was taken by either appellant to the evidence in advance of the trial.  The appeal court has emphasised the importance of section 79A(4) of the 1995 Act and the requirement that the objection could not reasonably have been taken at the preliminary hearing, before the objection can be allowed at the trial (Murphy v HMA 2012 SCCR 542 and Atkinson v HMA 2011 JC 57).  There were seven preliminary hearings in this case and a highly proactive approach to case management.  The Crown statements were provided well in advance of the trial.  In addition, as part of the pre-trial case management, and with a view to the agreement of evidence, a document detailing the proposed chapters of Crown evidence was drawn up by the Crown in July 2012 and given to the defence.  Chapter 8 of that document was entitled “Attempt to defeat/clean-up/Carsehead/inc flooring chapter Meadowfoot and Vauxhall Astra, care hire, inc Lee Winyard.”  This gave the appellants fair notice of the evidence that was objected to at the trial (Beggs v HMA 2010 SCCR 681 at para [167];  Jude v HMA 2012 HCJAC 65 at para [22)]).  In addition, no question of leading evidence of bad character arose since it was the Crown’s position that the appellants had not committed any crime of the kind that they described.  Nelson v HMA (1994 SCCR 192) did not apply.

 

The disclosure point

[22]      Counsel for the appellants submitted that the Crown failed to make timeous and full or adequate disclosure that the deceased had been recruited as a CHIS by SCDEA one month before her alleged disappearance and two months before it was reported to the Police.  She was recruited to provide intelligence in relation to a number of men, including Zefaj.  There was evidence that she had been subjected to serious physical threats by individuals who were actively pursuing her for substantial sums of money. 

[23]      There was evidence that enquiries with Interpol and Europol suggested that she was alive and living in Albania.  It transpired during cross-examination of Strathclyde Police officers who undertook the investigation into the disappearance that they had been kept in ignorance of the fact that the deceased was a CHIS.  After the appellants’ conviction an article was published in the Herald newspaper about the deceased’s role as a CHIS.  According to the Herald, her recruitment and disappearance had been the subject of two substantial internal investigations.  It narrated that deficiencies in the systems of recruitment and handling of CHIS had been identified and recommendations made for improvement.  Taking all of that information together, the appellants submitted that there was powerful evidence to suggest that there were others who had reason to kill her, particularly when the evidence showed that her status as CHIS had been compromised.  The Crown’s failure to disclose the material in advance of the trial, resulted in such prejudice to the appellants that there was a miscarriage of justice.

[24]      The Solicitor General confirmed that the appellants were provided with the information detailing the deceased’s status as a CHIS before the trial.  They were provided with an opportunity to precognosce the relevant witnesses.  No motion was made by either appellant requesting further time to prepare for the trial.  No petition for recovery of documents was lodged with the court before the trial.  There were two preliminary hearings between the disclosure of the material relating to the deceased’s status as a CHIS and the start of the trial.  In any case, there was evidence from D Supt Alan Buchanan that the deceased’s status as CHIS had not been compromised.  The information that he had received about her status did not have any bearing on her disappearance or her murder.  Mr Zefaj gave evidence that he was unaware of her CHIS status until reading press reports of the trial.  Evidence was led that discredited the defence theory that the deceased was still alive and living in Albania.  On the contrary, the substantial body of direct and circumstantial evidence suggested that she had died as a result of the actions of the appellants. 

[25]      The appellants had petitioned the court for recovery of the report that the Herald had obtained.  There was no material in the report of the commission that required any further disclosure by the Crown.  The information in the commissioner’s report did not undermine the Crown case in any way or assist the defence case. 

 

The appeals against sentence

[26]      In relation to the first appellant, it was submitted that the punishment part of 30 years was excessive.  There was no evidence admissible against him to establish what part he may have had in the death of the deceased.  The sentence imposed substantially exceeds that imposed on Al Megrahi in circumstances involving more casualties and more aggravating factors than this case.  Separately, the ten year sentence in respect of defeating the ends of justice was excessive.  Again, the first appellant’s role in the commission of that crime is unknown.

[27]      In relation to the second appellant, it was submitted that the punishment part of 33 years was excessive.  In respect of punishment and deterrence the public interest would still be served by a shorter punishment part.  Separately, the trial judge erred in imposing separate concurrent sentences in respect of the offences that did not attract the punishment part.  Further, in relation to charges 7 and 11 the sentences imposed were excessive.  

 

Conclusions

The objection point

[28]      The High Court of Justiciary Practice Note No 1 of 2005 gives practical effect to the procedural reforms of the Criminal Procedure (Amendment) (Scotland) Act 2004, by which section 79A was introduced.  It obliges parties to discuss their state of preparation before the preliminary hearing and to prepare a joint written record of it.  In doing so, the parties must each consider in detail the evidence that they may require to lead if the case goes to trial.  In particular, the parties must consider whether any preliminary plea, preliminary issue or other matter that may be disposed of before the trial should be raised and whether all appropriate notices in that regard have been lodged timeously (paras 7-8). 

[29]      Further, the court expects parties at the preliminary hearing to address the court in relation to, inter alia, any objection to the admissibility of evidence that has been identified in the joint written record (para 25). 

[30]      The Crown disclosed the Winyard/Asbury evidence between 20 December 2011 and 10 January 2012.  In addition, in July 2012 the Crown produced a document detailing the chapters of evidence that it proposed to lead.  It included the evidence of Winyard.  It was provided to the defence.  There were seven preliminary hearings and at no time was an objection made to the inclusion of that evidence.  That the defence was not taken by surprise in relation to this line of evidence is evident from the court minute dated 29 January 2013, which shows that the objection was taken shortly after the start of Winyard’s evidence.  The defence clearly saw this evidence coming, yet did nothing about it until the trial.

[31]      I do not accept the submission made on behalf of the appellants that the evidence of Winyard and Asbury fell to be automatically disregarded by counsel because it related to the murder of a different man.  In my opinion, that evidence was quite startling.  It should have been apparent to the defence that the significance of it in the context of the other evidence was that it could be inferred that at the relevant time the appellants were speaking of a fictitious murder but were anxious to dispose of a real body.  If the significance of the evidence was not apparent, the disclosure of it should have prompted the defence to discuss with the Crown what its purpose was in leading it.  There was ample opportunity, and an obligation in terms of the Practice Note, for such a discussion to have taken place.  In the event, it did not. 

[32]      In my opinion, the trial judge was entitled to refuse the objection in terms of section 79A(4) of the 1995 Act.  I have no reason to think that his refusal was unreasonable or perverse.  The objection could reasonably have been raised before the trial. 

 

The disclosure point
[33]      In my opinion, all that the disclosure showed was that people other than the appellants had reason to harm the deceased.  If the defence considered that the deceased’s status as a CHIS was important, they could have asked for a postponement to the trial.  They did not.  At the final preliminary hearing on 11 January 2013, three days before the start of the trial, counsel for the appellants informed the court that all enquiries had been completed and they were ready for trial.  That submission was made in the knowledge of the deceased’s status as a CHIS.

 

Miscarriage of justice

[34]      The grounds of appeal require to be seen in the context of the overwhelming evidence in this case.  There was evidence that both appellants had a motive to kill the deceased.  There was direct eye-witness evidence from their former co-accused as to the abduction, detention and torture of the deceased.  There was forensic evidence of the deceased’s blood in the bathroom of the house in which they detained her. There was extensive evidence that the flat in which the deceased had been kept had been cleaned.  There was evidence from a civilian witness that two men appeared with a van at an unoccupied rural property at which the first appellant’s brother used to live and burned a mattress and a chair.  The second appellant displayed a severed human thumb to one of the witnesses.  There was evidence of incriminating admissions by the appellants from a variety of witnesses with whom the appellants had conversed after the event.  That evidence included an admission by the second appellant to a fellow inmate at Addiewell Prison that he had killed the deceased.  The police investigation of proof of life showed no credible or reliable evidence of life.  Extensive telephone cell site evidence indicated that the second appellant had control of the deceased’s phone and sent a number of messages purporting to be from the deceased to create the impression that she was alive.

[35]      In this powerful case the most telling evidence was that of the co-accused.  It destroyed the idea, put forward by the defence, that the deceased was alive and living abroad.  From that and the other evidence in the case, there emerged, in my view, an overwhelming case that the appellants murdered the deceased.  Even without the evidence of Winyard and Asbury and even if there was a late and incomplete disclosure regarding the deceased’s status as a CHIS, it cannot be said that the defence was materially prejudiced.  In my opinion, there was no miscarriage of justice.

 

Sentences

[36]      As for the appeal against sentence, there were a number of aggravating factors that entitled the trial judge to impose a high punishment part.  The trial judge set them out in his sentencing statement.  This was a barbaric crime that merited the severest penalty.  The sentencing judge, who heard all of the evidence, considered that these sentences were appropriate.  He has clearly articulated his reasons for imposing them.  His reasons are cogent.  I see no basis on which we should interfere with them. 

 

Disposal

[37]      I propose to your Lordships that we should refuse both appeals.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY SITTING AT GLASGOW
	[2014] HCJAC 88
Lord Justice General Lord Menzies Lord Turnbull	Appeal No: XC225/13 XC226/13 OPINION OF LORD MENZIES   In the appeal against conviction and sentence by   (1) PHILIP WADE; and (2) COLIN COATS Appellants;   against   HER MAJESTY’S ADVOCATE Respondent: _______

For the first appellant:  Allan QC, Jones; Paterson Bell, Edinburgh

For the second appellant:  Jackson QC, Jackson; Drummond Miller, Edinburgh

For the Crown:  Solicitor General (Thomson QC), Barron;  Crown Agent

 

29 July 2014

[38]      For the reasons given by your Lordship in the chair I agree that both these appeals should be refused.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY SITTING AT GLASGOW
	[2014] HCJAC 88
Lord Justice General Lord Menzies Lord Turnbull	Appeal No: XC225/13 XC226/13 OPINION OF LORD TURNBULL   In the appeal against conviction and sentence by   (1) PHILIP WADE; and (2) COLIN COATS Appellants;   against   HER MAJESTY’S ADVOCATE Respondent: _______

For the first appellant:  Allan QC, Jones; Paterson Bell, Edinburgh

For the second appellant:  Jackson QC, Jackson; Drummond Miller, Edinburgh

For the Crown:  Solicitor General (Thomson QC), Barron; Crown Agent

 

29 July 2014

 

[39]      I am in agreement with the views expressed by your Lordship in the chair, and for these reasons I agree that both appeals should be refused.