: SCCRC Scottish Criminal CasesReview Commission

••......-•5th FloorPortland House17 Renfield StreetGlasgowG25AHLP-71 GLASGOW 6Tel: 01A1 270 7030Fax: 01A1 270 7040Email: info@sccrc.org.ukWeb: www.sccrc.org.uk

Mr William McKenna Beck

Glasgow

GN/1124

7 September 2012

Dear Mr Beck

The Scottish Criminal Cases Review Commission has decided that your case should be referred to the High Court. The Commission believes that there may have been a miscarriage of justice in relation to your conviction. The Commission also believes that it is in the interests of justice to refer your case to the High Court. I enclose a statement of reasons which explains why the Commission believes that there may have been a miscarriage of justice in your case. You now have the right to appeal to the High Court.By law, the Commission must send a copy of its statement of reasons to the High Court. TheCommission must also send a copy to every other person who is likely to be a party to any appeal. Accordingly, the Commission has sent copies of the statement of reasons to your solicitors (Turnbull McCarron), the High Court, the Lord Advocate and the Crown Agent. I appreciate that you may also wish Dr Michael Naughton at the University of Bristol Innocence Project to have a copy of the statement of reasons. I have therefore sent a spare copy to your solicitors - you can instruct them to send this copy to Dr Naughton if you wish to do so.The Commission's role in reviewing your case is now at an end. If you wish to appeal, you or your counsel will be required to present the appeal. Within eight weeks of today's date, you will require to lodge a note of appeal with the High Court. The note of appeal should set out the grounds on which you seek to challenge your conviction. The grounds of appeal must relate to the reason for making the reference contained in the statement of reasons attached although the High Court may grant leave for you to found on additional grounds (per sections 194D (4A) and (4B) of the Criminal Procedure (Scotland) Act 1995 (as amended)). An application to found upon additional grounds must be made and intimated to the Crown Agent within 21 days of the date on which the statement of reasons is issued.Furthermore, although the High Court will otherwise treat your appeal as if leave to appeal has been granted, in terms of section 194DA the High Court may reject a reference by theCommission if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed. I would suggest that, if you intend to proceed with this appeal, you should instruct a solicitor immediately. A list of names of solicitors is available from the Law Society of Scotland or you can search on their website for a specialist in criminal appeals at http://www.lawscot.org.uk/find/

If you meet the financial eligibility criteria of the Scottish Legal Aid Board (SLAB), you will be granted legal aid. SLAB will not ask whether your appeal is likely to succeed.If you are unsure about the content of this letter, you should speak to your solicitor.Please note that the Commission will issue a press release confirming its decision to refer your case to the High Court. This press release will issue at 3pm on the third working day following the date of this letter.

Yours sincerely

Gerard Sinclair

Chief Executive

SCOTTISH CRIMINAL CASES REVIEW COMMISSIONSTATEMENT OF REASONS UNDER SECTION 194D (4) OF THECRIMINAL PROCEDURE (SCOTLAND) ACT 1995

To: 1. The Principal Clerk of JusticiaryJusticiary OfficeParliament SquareEdinburghEH1IRQ

2. William McKenna BeckGlasgow

3. The Rt. Hon Frank Mulholland, QCThe Lord AdvocateCrown Office25 Chambers StreetEdinburghEH1 1LA

4. Tumbull McCarronSolicitors457 Duke StreetGlasgowG31 1RD

5. Ms Catherine DyerCrown AgentCrown Office25 Chambers StreetEdinburghEH11LA

1. In the exercise of its functions under Part XA of the Criminal Procedure (Scotland) Act1995 ('the 1995 Act'), as inserted by section 25 of the Crime and Punishment (Scotland)Act 1997, the Scottish Criminal Cases Review Commission ('the Commission') has considered the application of William McKenna Beck ('the applicant') for review of his conviction.

2. Having considered all the material issues, the Commission has decided to refer the applicant's case to the High Court in terms of section 194B of the 1995 Act.

3. The documents accompanying this statement of reasons are listed in the schedule of appendices annexed hereto.

4. One of the Commission's Board Members, Mr Gerard Bann, solicitor, declared a conflict of interest in this case. He took no part in the Commission's decision to refer the case to the High Court.

DETAILS OF CONVICTION

Name of convicted person: William McKenna Beck Offence: Assault and robbery; theftCourt: Edinburgh High CourtDate of conviction: 30 March 1982Sentence: 6 years imprisonment

BACKGROUND

5. The applicant stood trial at Edinburgh High Court on 29 March 1982 on an indictment that contained the following two charges: 'you did on 12 December 1981

(1) in the Clyde Port Authority car park, Broomielaw, Glasgow, steal a motor car registration mark XUS 488S; and (2) at the supermarket at Carmondean Centre, Livingston, West Lothian, occupied bySafeway Foods Limited, while acting along with another whose identity is meantime tothe prosecutor unknown, assault William John Young Horn, and John Ramsay SmartHenderson, both officers of the Post Office and did strike them on the head and bodywith hammers and rob them of 4 bags containing banking documentation, a quantity ofcheques and £21,000 of money.'

6. The trial took place on 29 and 30 March 1982, after which the applicant was convicted of both charges as libelled.

CROWN CASE

7. The following details were obtained principally from the trial judge's charge to the jury.

8. There was no real dispute at trial that the offences narrated in both charges had occurred. The only matter for the jury was whether it had been proved that the applicant was one of those responsible for them.

9. In respect of charge 1, the jury was directed that they were not entitled to convict the applicant of this charge unless they had first decided that he was responsible for the offence libelled in charge 2. In other words, provided the jury was satisfied that the applicant had committed the robbery, they were entitled to infer that he had also stolen the car used in that offence. The car had been taken from the car park at Broomielaw, Glasgow between 11.30am and 2.15pm on 12 December 1981, the day of the robbery, and was found the following morning abandoned in Kirkliston, near to where it had last been seen by witnesses at Newbridge roundabout. The robbery itself had taken place at about 3.45pm.

10. Evidence was led from the two postal officers, Mr Horn and Mr Henderson. Mr Horn was unable to identify either assailant at the identification parade but believed the applicant resembled the one who had assaulted him. He had seen the man's face, eyes and eyebrows, nose, mouth and part of his chin, and believed it was the applicant. However, when asked in evidence the basis for this belief, Mr Horn replied that it was 'just a feeling [he] had'. Consequently, the jury was directed that Mr Horn's evidence as to identification was unsatisfactory.

11. Mr Henderson had not seen the faces of either man and was able to say only that one of them had worn a dark blue anorak, similar to the one recovered by the police from the applicant.

12. Evidence was also led from Michelle Tiffriey who had seen both men running from a side entrance to the supermarket, and down a path in the direction of Raeburn Rigg.(According to the defence solicitor's handwritten notes of her evidence, she could not recall what she had said at the identification parade but she confirmed she did not pick out the applicant at the parade; the report of the identification parade records that she picked out two stand-ins as resembling the perpetrators.) Her evidence about the direction the perpetrators ran was complemented by evidence from other witnesses, including Thomas and Anne Callan. Mrs Callan identified the applicant at the identification parade as being similar to the man whose face she had seen prior to him running down the path. However, her initial position at the parade was that she was uncertain whether either of the men was on the parade. On the day following the robbery, the police had shown Mrs Callan a photograph of the applicant (it is clear she considered the applicant's appearance similar to one of the perpetrators, but did not identify him positively). Mr Callan told the court that he had seen one man get into the driving seat of a blue car parked in Raeburn Rigg 'after the driver was in the car' (this is taken from the trial judge's description of the evidence in his charge but presumably the witness's evidence was either that one man got into the passenger seat after the driver was in the car or that the man got into the driving seat after the passenger was in the car; the handwritten notes of the evidence do not clarify this but the witness's Crown precognition suggests the former).

13. A further witness, Steven Clark, said that he had chased the getaway car, a blue FordGranada, to the Newbridge roundabout, but had lost sight of it there. He subsequently picked out a stand-in at the parade attended by the applicant as resembling the man who drove off in the getaway car (as confirmed in the identification parade report).

14.The most significant identification evidence was given by Kenneth Ashford and an off duty police constable, Nigel Muckle. Mr Ashford had chased one of the men and, in the course of this, had come across a blue car, the driver of which he identified as the applicant.Mr Muckle had been working on his own car when he saw two men running down a path, both clutching their hands across their chests as if concealing something. Both men got into a car and, from a distance of 18 to 20 feet, Mr Muckle was able to identify the applicant as the driver. He also managed to note the registration number of the vehicle as it was driven past him.

15. Counsel for the applicant emphasised to the jury various discrepancies in the evidence of the Crown witnesses. For example, he highlighted the difference between the evidence of Mr Ashford and Mr Muckle as to the speed at which the car had been travelling. While Mr

Ashford did not consider that the car had been driven at speed, Mr Muckle spoke to the vehicle being driven in an 'aggressive' manner.

DEFENCE CASE

16. A submission of no case to answer made on behalf of the applicant was rejected and evidence was thereafter led. A detailed notice of alibi was lodged, and evidence was led by the defence from the applicant himself, and a number of other witnesses. His partner, Louise Morris, had been called by the Crown, as had the witness Michelle White, but both spoke to the applicant's whereabouts on the day in question. Again, the details here are taken mainly from the judge's charge.

17. Evidence was led that on the day in question the applicant had left his father's house, seemingly at about 12.30pm, and for the rest of the afternoon was in the company of LouiseMorris. Defence witnesses also suggested the applicant was seen between around 5.15pm or 5.30pm and 6.05pm on a bus travelling from the city centre to the Castlemilk area of Glasgow. Marion Geary, thought she got on the bus between 5.15pm and 5.30pm; Ann Marson thought she got on the bus between 5.30pm and 6pm; and Michelle White saw the applicant on the bus which she had boarded at Eglinton Toll at 6.05pm. Another witness, Mrs Harley, suggested the applicant arrived in Holmbyre Road, Castlemilk some time after 5pm although it could have been after 6pm.

18. The judge's charge suggested that there was no real dispute that the applicant was in Glasgow at around 6pm on the day of the robbery. However, the judge suggested to the jury that, according to the evidence, only Louise Morris could speak to the applicant's movements from 1pm up until that time. The jury were directed that in assessing the evidence, they required to consider the distance between Kirkliston (where the car was eventually found) and Glasgow, as well as the time this would have taken to travel.

VERDICT AND SENTENCE

19. The applicant was found guilty of both charges on the indictment by majority verdicts of the jury. He was sentenced to 6 years imprisonment. In sentencing the applicant, the trial judge noted that he had several previous convictions for dishonesty and assault, many of which had attracted custodial sentences.

APPEAL

20. The applicant lodged a note of appeal against conviction on 27 May 1982 in which he alleged that the evidence of the off duty police officer, Mr Muckle, was not credible and should have been rejected. On 24 June 1982, the applicant lodged a further note of appeal in which he argued that no reasonable jury could have convicted him of the offences; that the trial judge had erred in directing the jury that they could not convict him of charge 1 unless they had already decided to convict him of charge 2; that, as the judge had directed that Mr Ashford's identification evidence was unreliable, his evidence should have been rejected by the jury; that the applicant would not have had sufficient time to commit the robbery and be back in Glasgow by 5.30pm; that charge 2 was 'wrong' because it alleged that he had struck the complainers with hammers, when there was evidence to the effect that an axe had been used; that two hammers belonging to the applicant should not have been lodged as productions as there was no evidence that these had been used in the robbery; and that evidence should now be heard of four witnesses, Jean Clark, David Livingstone, Donald Shaw and Hugh Wilson,

none of whom were called at trial. He lodged various other grounds in further correspondence.

21. The applicant attempted to instruct new solicitors to assist him with his appeal, having expressed dissatisfaction with his trial representatives, but he was refused legal aid in connection with his appeal and therefore required to submit his grounds and conduct proceedings on his own behalf. The appeal was eventually rejected on 7 October 1982.

22. Thereafter the applicant petitioned the office of the Secretary of State for Scotland on a number of occasions in an attempt to have his case referred to the High Court or for exercise of the Royal prerogative of mercy, without success.

23. The applicant applied to the Commission in April 2001 for a review of his conviction.A number of substantive investigations were conducted but ultimately the Commission decided not to refer the applicant's case to the High Court.

24. The applicant instructed solicitors in November 2005 to lodge on his behalf an application for an extension of time to lodge a note of appeal. That application was refused by a single judge of the High Court of Justiciary. The applicant appealed against that decision. Finally, on 31 March 2006, the court issued an opinion refusing the application to appeal against the refusal of leave (see Beck v HMA 2006 JC 178). That opinion was to the effect that the application under section 111(2) of the 1995 Act was incompetent.

25. The applicant applied again to the Commission for review of his conviction in May2006 but after a very much more limited review, the Commission again decided not to refer his case.

26. The applicant subsequently sought to petition the nobile officium of the High Court, on the basis inter alia that the hearing of his appeal in 1982 was at common law unfair, in particular because he did not then have the benefit of legal aid. A single judge of the High Court refused to grant a warrant for service on the ground that the petition was incompetent.The applicant sought a review of that decision by a larger bench. In the event this appeal was heard, along with similar appeals by a number of other convicted persons, by a bench of five judges. The Lord Justice General (Hamilton) delivered the court's opinion on 29 January 2010 (Beck, Petitioner 2010 SCCR 222) and concluded in relation to the applicant's case that no basis had been advanced to defeat the operation of the finality provision (Beck, paragraph 36). In reaching this view, reference was made to the fact that the European Convention on Human Rights ('the Convention') did not have domestic effect at the time of the applicant's appeal and that there was nothing extraordinary at that time, when leave to appeal was not required, in appellants presenting appeals in person, many of which were without substance in law.

OTHER DEVELOPMENTS POST-TRIAL

27. Following his conviction, the applicant lodged a formal complaint with the Law Society of Scotland against his solicitor, James Keegan, in relation to the manner in which his defence was conducted. He also made a complaint against Lothian and Borders Police regarding the manner in which the identification parade had been conducted. The following details in this section are taken from a previous review of the applicant's case; the Commission did not retain copies of the papers from which the information is obtained.

28. With regard to his complaint to the Law Society, the applicant alleged that he had been wrongly convicted due to 'negligence, incompetence and professional misconduct' on the part of Mr Keegan, and also defence counsel, William Taylor. Specifically, the applicant alleged that certain witnesses were not called to give evidence in his defence, that a witness who was called was not asked a specific question, and that the precognitions of two Crown witnesses were not shown to him.

29. In rejecting the complaint, the Scottish Solicitors Discipline Tribunal held that, as there was no suggestion by the applicant that Mr Keegan had acted maliciously or with disregard for his interests, no further action was justified. The issue of which questions were to be put to witnesses was a matter for Mr Taylor, not Mr Keegan, and while as a solicitor Mr Keegan was expected to work closely with his client, there was no absolute duty upon him to disclose every document produced by the defence.

30. In his complaint against the police, the applicant alleged that certain witnesses had been shown photographs of him prior to their viewing the identification parade and that the identification parade he had attended was improperly conducted.

31.In his letter of 14 May 1984, the procurator fiscal for Lothian and Borders, to whom the applicant's complaint was passed, stated that following investigation he was satisfied that there had been 'no significant departure' from the official guidelines relating to the conduct of identification parades. Furthermore, having interviewed those who had viewed the parade, the procurator fiscal was 'completely satisfied' that nothing improper had taken place involving the witnesses, and that their identifications were freely made. With regard to the applicant's allegation that photographs of him were shown to witnesses, the procurator fiscal said that there was nothing improper in this, given the stage at which the investigation had then reached. The number of witnesses to whom photographs were shown, and the method used, did not, in the procurator fiscal's view, disclose anything improper or prejudicial to the applicant.

32. At some stage after the applicant's trial, his partner, Louise Morris, was herself tried for attempting to suborn a defence witness, Robert Hamilton, to give false evidence in support of the applicant's alibi. According to the applicant (the Commission has been unable to obtain any papers in respect of the case) the charge against Ms Morris was eventually found not proven.

THE COMMISSION'S REVIEW

33. In reaching its decision on the applicant's case, the Commission has considered a wide variety of materials including the following: the application form submitted to the Commission and various further submissions made and materials submitted by the applicant or on his behalf during the review; the papers retained by the Commission from its previous reviews of the applicant's case, including a copy of handwritten notes of the proceedings at the trial which the applicant provided to the Commission and which the Commission accepts are the notes taken by the trial solicitor (although there is some additional annotation, underlining etc which has evidently been done by the applicant post-trial; a copy of the notes is in the appendix); statements the Commission obtained from Kenneth Ashford (see appendix) and David Martin; and various responses and materials the Commission obtained as a result of enquiries with Professor Tim Valentine, Crown Office, the applicant's solicitor at trial, the advocate depute at trial, the police, and as a result of enquiries the Commission made in relation to Alexander Hardie.

34. In the current application and submissions following upon it, the applicant raised a large number of grounds which he considered justified his case being referred to the High Court.

A number of these revisited arguments raised in the previous reviews but new matters were also submitted. After an initial review of the submissions the Commission was not persuaded that a miscarriage of justice may have occurred in relation to the grounds raised and issued to the applicant a statement of reasons for its decision (referred to below as 'the initial statement of reasons'). The applicant took the opportunity to make very lengthy further submissions, in response to the Commission's decision. Submissions were also submitted on his behalf by the University of Bristol Innocence Project. In the event the Commission considers that many of the arguments submitted, in particular by the applicant himself, do not offer anything new or materially different to matters which the Commission has already considered in some detail either in the initial statement of reasons issued during the present review or in previous reviews; the Commission does not consider it necessary to revisit all those matters in detail here. The principal grounds raised, and the Commission's views on these, follow.

Report by Professor Tim Valentine

35. The applicant originally submitted to the Commission a brief report which he had obtained from Professor Tim Valentine in relation to the identification evidence in his case.In the course of the Commission's review, the Commission instructed a more substantive report from Professor Valentine, which is dated 12 April 2010. The Commission's consideration of this report, in its initial statement of reasons, pre-dated the decision of the appeal court on the admissibility of a similar report by Professor Valentine in Gage v HMA2012 SCCR 161, but the Commission expressed doubts about the admissibility of the report in the applicant's case. Those doubts have since been confirmed in Gage, but as that question had not been settled when the Commission came to issue its initial statement of reasons the Commission proceeded, out of fairness to the applicant, to consider Professor Valentine's report on the assumption that it would be admissible. Having considered the report, the Commission did not believe the evidence was of such materiality that a miscarriage of justice may have occurred (applying the test for fresh evidence summarised in Al Megrahi v HMA 2002 SCCR 509 at page 584, set out in more detail below). In particular, the Commission considered that the absence of crucial materials such as the first statements of witnesses, the photographs shown to witnesses and details of the circumstances of the showing of those photographs, necessarily undermined the potential significance of Professor Valentine's report. The Commission also considered, for example, that a number of other matters raised by Professor Valentine, such as the limited opportunity the witnesses had to view the assailants, were in many respects obvious and would have added little to what was already within the common knowledge and experience of a jury, again reducing the significance of his report.

36. The Innocence Project and the applicant, in making further submissions to the Commission, advanced the view that Professor Valentine's report was significant and supported the argument that a miscarriage of justice may have occurred in the applicant's case. The Innocence Project also attempted to address the reasoning given in Gage for the view that such evidence is inadmissible. They questioned, for example, the conclusion inGage that expert evidence on identification was not 'necessary' to assist a jury in its consideration of such evidence, suggesting this seemed to be based only on the assumption that all jurors are competent to decide on the reliability of eyewitness identification evidence from their life experiences, which they considered was a wholly circular argument, asProfessor Valentine's report was based on the very fact that people often do not realise how fallible such testimony can be and how even confident and credible eyewitnesses can be mistaken. They accepted that there may also be policy reasons underlying the court's decision

in Gage, and in addressing these suggested that it would be more in keeping with understandings of human memory and cognition for courts to proceed on the assumption that eyewitness identification is unreliable unless special circumstances exist sufficient to render them reliable. They recognised, however, that no individual case was likely to accommodate such a fundamental change of presumption.

37. The Commission has considered the decision of the court in Gage in light of the further submissions that have been received. In the Commission's view the court's decision is clear as to the test of admissibility of expert evidence such as Professor Valentine's report and does not call out for detailed examination or further clarification. The Commission considers the implications of the decision for Professor Valentine's report in the applicant's case to be insurmountable: the report is not admissible as fresh evidence in support of any appeal. For these reasons, the Commission does not believe a miscarriage of justice may have occurred in law on the basis of Professor Valentine's report. However, the Commission does not doubt the central message from Professor Valentine's report, namely that identification evidence, particularly involving a fleeting view of a stranger such as is the basis for the applicant's conviction, is extremely prone to inaccuracy, even where the witnesses express certainty and appear credible.

Fairness of identification parade

38. Although Professor Valentine's report is not itself admissible, the question of the fairness of the identification procedures in the applicant's case, including the identification parade, is a separate issue. Various matters mentioned by Professor Valentine in his report concerned the fairness of the procedures. The Commission considered the various criticisms of these procedures in its initial statement of reasons and reached the view that, although the conduct of the parade did not meet the Scottish Home and Health Department's Guidelines on the Conduct of Identification Parades (the 'SHHD guidelines', which were published in 1982, after the parade in the applicant's case took place), the irregularities did not cause the parade to be conducted so unfairly that evidence of it ought not to have been admitted at the trial, or that otherwise the admission of that evidence at trial caused such unfairness to the trial as a whole that a miscarriage of justice may have occurred.

39. Further submissions were made in response to the Commission's decision on this issue.Those further submissions focus on the conduct of the identification parade itself. In the context of the suitability of the stand-ins at the parade, it was submitted by the Innocence Project that it was unduly restrictive to assess the identification parade on the basis of a particular set of guidelines, the submission being not that particular guidelines had or had not been breached but rather that, taking all the circumstances into consideration, the conduct of the parade was unfair. It was also submitted that the absence of objection to the parade by the applicant or his solicitor should not be taken to imply that any differences between the stand-ins and the applicant were insignificant, as the applicant deferred decisions about the conduct of the parade to his solicitor (a submission which the applicant himself confirmed forcefully in his submissions) and there are various reasons why the solicitor may have decided not to object. It would therefore be wrong, it was submitted, to rely upon an unexplained decision by his solicitor at the time to prejudice reasonable assertions now made that the stand-ins were unsuitable. Reference was also made to the fact that two police officers involved in the investigation of the applicant were also involved in the identification parade. It was accepted that there was no evidence that either officer intentionally interfered with the conduct of the parade, but it was suggested that subtle, unintentional feedback such as a sigh, a meaningful

look or even a shift in body position could have occurred without the officers or witnesses being conscious of it, and that the possibility of such influence was significant.

40. The Commission would note firstly that, in reaching the view in the initial statement of reasons that no miscarriage of justice had occurred in the applicant's case in relation to the conduct of the identification parade, reference was made to the SHHD guidelines of 1982 as an example of good practice, albeit the publication of those guidelines post-dated the parade in the applicant's case. Following upon receipt of further submissions, the Commission obtained a copy of the interim guidance that was in place at the time of the applicant's identification parade, which the Commission located in Crown Office files stored in the National Archives. The Commission notes that in all material respects the interim guidance is the same as the SHHD guidelines.

41. Although it was submitted on the applicant's behalf that assessment of the fairness of the identification procedures by reference to the guidelines is 'unduly restrictive' the Commission considers that the guidelines exist for good reason i.e. to set out good practice, compliance with which should ensure the fairness of the procedures. Circumstances would have to be particularly unusual before conduct which met all the requirements of the guidelines would nevertheless be regarded as unfair. Contrary to submissions the applicant made, however, that does not mean that a failure to meet any requirement of the guidelines would necessarily render the identification unfair. As the Commission stated in the initial statement of reasons, and despite submissions by the applicant about the impact of failures to follow the guidelines, there is authority that the guidance on the conduct of identification parades (which now takes the form of guidelines issued by the Lord Advocate) are merely guidelines by the executive branch of government to police forces and beyond that have no legal status (Hanif v HMA 2009 SCCR 38 at paragraph 27). Before a breach of the guidelines would render the evidence of identification unfair, the alternative procedures adopted must be considered in the context of all the circumstances prevailing at the time (McFadden v HMA 2009 SCCR 902 at paragraph 32, in the context of voice identification at a parade).

42. Three issues in particular are complained of by both the Innocence Project and the applicant in relation to the identification parade itself: the suitability of the stand-ins; the involvement in the parade of officers with previous connections to the investigation; and, connected to this, the possibility of feedback.

43. In relation to the stand-ins, the guidelines in place at the time required the accused to be placed beside persons of similar age, height, dress and general appearance and provided that it is more important that stand-ins should resemble the accused than any descriptions given by witnesses. The guidelines also provided that the minimum number in any parade should be five, in addition to the suspect, but where more were available, up to a maximum of eight, the larger number should be preferred. The Innocence Project's submission is effectively that two of the stand-ins at the parade in the applicant's case were not suitable as they were not sufficiently similar: stand-in B at the parade was noted as having a moustache, thus differing from the applicant in a significant feature; stand-in F was 6 feet tall and had brown hair, whereas the applicant was 5 feet 9 inches and had 'dark' hair.

44. The Commission accepts that, based on the details in the identification parade report, there do appear to be discrepancies between the applicant and some features of stand-ins, in particular the moustache worn by stand-in B but also the height and possibly hair colour of

stand-in F. The moustache on stand-in B was obvious enough that it was recorded in the description of him in the parade report and was referred to by one of the witnesses,Jacqueline Tiffhey. The Commission therefore agrees that, on the face of it, the descriptions suggest at least that stand-in B was not sufficiently similar in general appearance to be a suitable stand-in in terms of the guidelines, thus reducing the number of suitable persons on the parade below what the guidelines require. On the other hand, it remains the case that it is difficult in retrospect to assess precisely how stark the differences actually were between the applicant and the stand-ins (except perhaps on matters such as height). The Commission also remains of the view, despite the further submissions to the contrary, that some weight must be attached to the fact that no objection was made by the applicant or his solicitor, both of whom were present and could see any obvious discrepancies. The report of the parade specifically records that both the applicant and his solicitor were asked if they had any objections to any of the members of the parade or to the arrangements made and they responded in the negative. The opportunity to object is an important safeguard against unfairness at the parade, as is the fact that the applicant had his solicitor present throughout: the purpose of the solicitor's presence was precisely to ensure nothing unfair took place, so it must have been obvious to him, even if it was not obvious to the applicant, that objection should be taken if there was any significant discrepancy between the applicant and any stand-ins, if only to ensure that the objection was recorded. It would be easier to call into question the fairness of a parade either if no opportunity had been afforded to object to any of the stand-ins, or if strong objections had been raised by the accused or his solicitor whichwere not remedied by the police before the parade took place.

45. The other irregularity in the conduct of the parade was the fact that DC RichardPeacock assisted witnesses when, as an officer involved in the inquiry, the guidelines state that such officers should take no part in the parade. The Commission notes that DCPeacock had contact with the witness Kenneth Ashford on the day of the robbery and that he was also present when the applicant was arrested. His involvement in the parade thereafter was, therefore, a breach of the guidelines. In the Commission's view, however, it remains important that there was no evidence that DC Peacock entered the parade room. He was specifically recorded in both his Crown and defence precognitions as having stated that he did not enter the parade room; his involvement was restricted solely to the accompanying of witnesses to the parade room from the witness room. This limited the opportunity he might have to influence, either intentionally or by some subconscious means, what the witnesses said or thought at the parade or afterwards.

46. The second officer who was involved in the police investigation and who was also at the parade was DS Dickson. The Commission notes from DS Dickson's Crown precognition that he was present in the parade room 'as an observer only'. There is no indication that he took any part in the conduct of the parade or that he left the room while the parade was being conducted. The handwritten notes of DS Dickson's evidence reveal that he confirmed in cross-examination that he was the officer in charge of the investigation. The Commission notes that, in terms of the guidelines, the officer in charge of the case may be allowed to be present at a parade but, if he is present, he should remain in the parade room throughout the proceedings and take no active part. It appears therefore that the presence of DS Dickson did not involve a breach of the guidelines.

47. In a previous review of the applicant's case the Commission contacted Donald Shaw, the solicitor who represented the applicant at the identification parade. Mr Shaw's position, as stated in a letter to the Commission, was that he had formed the impression that one of the

witnesses who identified the applicant was 'suspiciously quick' about doing so as the witness paid 'very scant attention' to the others on the parade and pointed out the applicant 'without hesitation'. A handwritten addendum to a typed note of Mr Shaw's attendance at the parade suggests that this witness was PC Nigel Muckle; the handwritten note then states 'I/D too positive - I/D without even looking down the parade.' The Commission's file note of a telephone conversation with Mr Shaw records that Mr Shaw's 'big impression' was that the witness knew the applicant's position prior to entering the parade room. Mr Shaw's position in his letter to the Commission was that he did not bring this to the attention of the police because it was just an impression and he would not have been in a position to question any response. Thereafter, the Commission interviewed Mr Muckle. In short, MrMuckle confirmed that he had picked out the applicant very quickly and that he had been certain of his identification; his position was that none of the officers involved in the parade gave him any indication about who he should pick out at the parade or gave him feedback afterwards that he had picked out the person thought to be responsible. His position was that, although he could not recall the personnel involved in the case, the officer who showed him from the witness room to the parade room did not come into the parade room.

48. In light of the continued doubts raised about the fairness of the parade and the importance of the identification evidence, the Commission considered it appropriate to interview Kenneth Ashford, the other witness who identified the applicant positively at the parade. For the sake of brevity, Mr Ashford's signed statement is contained in the appendix.The Commission found no reason to doubt that Mr Ashford was entirely credible, but the significant passage of time had clearly affected his memory of events to some extent. There is nothing in Mr Ashford's statement which suggests to the Commission that there was any unfairness in the conduct of the parade: his account did not suggest that there was any impropriety on the part of those who conducted the parade; his position was that he was not shown any photographs prior to the parade, or given any feedback in the aftermath of it, which might have tainted his identification of the applicant at the parade; and in relation to the place where he was standing when he saw the getaway car drive by (an issue about which the applicant had made a number of submissions, to the effect that Mr Ashford's evidence on this matter was inconsistent with his prior accounts and with the accounts of other witnesses), his account was, in the Commission's view, consistent with the Commission's understanding of the evidence that he had entered Raeburn Rigg and therefore had an opportunity to see the driver of the getaway car as the car drove out of Raeburn Rigg.

49. There remains, therefore, an absence of any evidence to support the possibility that any undue influence or feedback, deliberate or unintentional, took place at the parade, and theCommission is not prepared to proceed on the assumption that it might have done.

50. The Commission also considers it important to note that no objection was taken at trial to the admissibility of the identification parade evidence, even though by that time DCPeacock's role in the parade and in the prior police investigation would have been apparent to the defence, as would the apparent dissimilarities between the applicant and stand-ins.

51. The Commission also notes that, as referred to above, the procurator fiscal conducted an investigation into the conduct of the parade, in response to the applicant's post-trial complaint to the police, but, having interviewed the witnesses who attended the parade, the fiscal was satisfied that nothing improper had taken place and that the identifications were freely made.

52. In addition to arguments about the stand-ins and the involvement of officers who ought not to have been part of the parade procedures, the applicant also submitted that the showing of photographs to witnesses prior to the identification parade was unfair, and he revisited the submission to the effect that Mr Muckle identified him at the parade with suspicious speed.

53. The Commission does not believe these submissions add anything to the Commission's detailed consideration of those matters in the initial statement of reasons.The Commission noted there that photographs were shown to a number of witnesses during the police enquiry, including Anne Callan, who picked out a photograph of the applicant onSunday 13 December 1981 as similar to the perpetrator, and Nigel Muckle, who positively identified a photograph of the applicant on Tuesday 15 December 1981 (the applicant having then been arrested and put on the identification parade the following day). The Commission remains of the view that the showing of photographs in these circumstances did not breach the guidelines then in place; it would only have been a breach of the guidelines to show photographs to Mr Muckle if a positive identification had already beensecured: Mrs Callan did not provide a positive identification of the applicant's photograph.Nevertheless, the Commission accepts that the showing of photographs to both witnesses introduced the possibility that the witnesses' memories would be distorted by the photograph of the applicant when they came to the identification parade. The difficulty with assessing the extent to which this might have happened and the potential for unfairness in that process in the applicant's case is that there is an absence of important materials: police statements and photographs are simply not available. What information that is available is contained in the Crown precognitions of the two witnesses. The Crown precognition of Mr Muckle records that he was shown a book of photographs by a woman detective constable.He described the book as a normal book of photographs of convicted persons with some 8 photographs to the page and some 30 pages in all (which the Commission notes would comprise a total of 240 photographs). The precognition records that Mr Muckle was not directed to any particular page. He selected the photograph of one man as being a photograph of the car driver. He was not told the name of the person he picked out. A handwritten note on the precognition states the applicant's surname next to this passage, suggesting that it was the applicant's photograph that was selected. The Crown precognition of Anne Callan records that during the afternoon of Sunday 13 December 1981 she called at Livingston Police Station where she was shown a selection of photographs in 2 or 3 books. The precognition states that she saw a large number of photographs in all and that she saw one that was a very good likeness of the person who ran in front of her car and that she pointed this out to the policeman who was showing her the photographs. The precognition records in brackets that the photograph was of the applicant.

54. In the Commission's view, the information that can be taken from the two precognitions does not suggest that there was any obvious unfairness in the circumstances of showing the photographs: it is clear, in particular, that both witnesses were shown a large number of photographs.

55. In his further submissions the applicant also sought to draw parallels between his case and a trial involving a man named James Haggerty, and he provided links to a media report of Mr Haggerty's case. The Commission notes from that report that Mr Haggerty's trial collapsed after an objection was raised by defence counsel to an identification parade when it transpired that the witness viewing the parade had been shown 'mugshots' of the accused just prior to attending the parade. It appears an officer involved in the investigation was also involved in the organisation of the parade. In the Commission's view, the showing of photographs of an

accused to a witness immediately prior to an identification parade is a clear breach of the guidelines and introduces an obvious unfairness which would justify an objection at trial, as appears to have occurred in Mr Haggerty's case. However, in the applicant's case there is an absence of evidence that the showing of photographs to witnesses (the fact of which was known to the defence and referred to at trial and which took place during the police enquiry, prior to the applicant's arrest, rather than immediately prior to the identification parade) was done in breach of the guidelines or that any unfairness occurred in that regard. The Commission therefore does not believe the Haggerty case is of material assistance to the applicant's arguments.

56. Before concluding on this issue, however, the Commission considers it appropriate to comment on certain passages in Kenneth Ashford's statement to the Commission in which he referred to what he had been told by someone, probably at Crown precognition, would take place at the trial (see page 4, paragraph 1 and page 11, paragraph 4 of his statement).He stated that the possibility was mentioned to him that the accused person might have changed appearance, for example by growing a beard, and that if he could not recognise in court the person he had seen he should say so, in which case other evidence might be led to confirm that the accused had changed appearance between the incident and the trial. MrAshford also said at one stage that he thought he had been told that he would be asked to identify someone 'in the dock'.57. In the Commission's view, if the discussions Mr Ashford described did indeed take place as he described them, it would certainly constitute poor practice: a representative of the procurator fiscal ought not to engage in such discussions with a witness at precognition, even if, as Mr Ashford asserted, this was done only in a general way (there is certainly no suggestion, for example, that the applicant changed his appearance after his arrest). In particular, the witness ought not to be informed that he will be asked in court to identify someone 'in the dock': a dock identification is already a suggestive enough procedure. TheCommission does note, on the other hand, that if Mr Ashford's memory is reliable it was also emphasised to him that if he did not recognise anyone in court he should say so.Therefore, the Commission does not infer any bad faith on the part of the prosecuting authorities. However, given that 30 years have passed between the events and Mr Ashford's attempt to recollect them, and given Mr Ashford's undoubted vagueness about exactly what he had been told, and even by whom he had been told it, the Commission does not consider it appropriate to place weight on these precise details of his account.

58. Having considered the identification evidence again, the Commission does have concerns that the identification parade was not conducted in complete adherence to the guidelines then in place, in particular because at least one of the stand-ins appears on the face of it not to meet the requirement that he be similar in general appearance to the applicant. However, despite the arguments that have been made to the contrary, the Commission must also take into account the absence of objection, either at the parade or at trial, and the absence of other evidence to demonstrate any unfairness in the identification procedures. Taking these matters into account, and considering the case as a whole, the Commission remains unable to conclude that the identification evidence was either obtained so unfairly that it ought not to have been admitted at trial or otherwise that, in the context of the trial as a whole, its admission in evidence was such that the applicant was denied a fair trial. The Commission maintains that view even when the various concerns raised by the applicant and the Innocence Project are considered cumulatively.

59. That is not to say that the Commission has simply dismissed its concerns about the parade, or that it believes the two positive identifications of the applicant were necessarily accurate. Indeed, the parade in many ways demonstrates the fallibility of eye witness evidence: although two witnesses positively identified the applicant and two more suggested he resembled one of the perpetrators, a further three witnesses picked out stand-ins at the parade when asked to identify; and three more picked out stand-ins when asked if anyone on the parade resembled the perpetrator they saw. It is clear that at least some of those witnesses were attempting to identify the same perpetrator whom Mr Ashford and Mr Muckle identified the applicant as being (e.g. Steven Clark picked out a stand-in as resembling the man who drove off in the getaway vehicle; Jean Clark's description in her Crown precognition suggests the person she was trying to identify when she picked out a stand-in was the same man Mr Ashford described; Michelle Tiffhey picked out two standins as resembling the two perpetrators). It is possible some of the other witnesses who picked out stand-ins were attempting to identify the other perpetrator, who became the passenger in the getaway car, but this also emphasises the limitations of the eyewitness evidence: there is no suggestion the police put anyone on the parade who they suspected might be, or might fit the description of, the applicant's accomplice.

60. Nevertheless, the Commission's conclusion here is that, in law, the Commission does not believe the circumstances disclose such unfairness that the Commission's statutory test is met.

Crown precognition of David Livingstone

61. Submissions were made to the Commission in relation to the Crown precognition of a Crown witness, David Livingstone. He attended the identification parade but did not pick anyone out. He was precognosced by both the Crown and defence but did not give evidence at the trial. His account in both his Crown and defence precognitions was to the effect that he saw the getaway car in the square outside his house in Kirkliston, at a point which must have been shortly before it was abandoned. He saw the driver and passenger. As regards identification of the men involved, in his defence precognition Mr Livingstone was recorded as stating only that at a subsequent identification parade he was unable to identify any of the people on the parade as either of the two men associated with the vehicle he had seen.There is no description of either man in the defence precognition. However, the Crown precognition states 'I saw the face of the driver. He had a moustache and short brown hair.He was about 40 years old. The passenger seemed younger, late 20's, early 30's.' Earlier in the precognition Mr Livingstone was recorded as indicating that the passenger seemed about 5'8"/5'10" tall. Reference was then made in the precognition to the identification parade and the fact that Mr Livingstone did not pick anyone out. The precognition then states'Bearing in mind that my recollection of the driver is a little hazy, I would say that the driver was not on that parade.'

62. For present purposes the crucial part of Mr Livingstone's Crown precognition is his description of the driver, which is said to be inconsistent with the applicant's appearance, the applicant having been identified by both Mr Muckle and Mr Ashford as the driver of the getaway car when it left the locus.

63. In short the submission is that Mr Livingstone's Crown precognition contained information that was, on the face of it, of assistance to the defence. In essence two arguments have been made in that regard. The first is that, if the contents of the Crown precognition were not disclosed to the defence, the failure of the Crown to disclose amounts to a

miscarriage of justice. The second argument is that, if the precognition was disclosed to the defence, the failure of the defence to lead evidence from Mr Livingstone amounts to a miscarriage of justice. The fact that both these submissions are made reflects the fact that it is not known for certain whether or not the contents of the precognition were indeed disclosed, or more particularly whether they were disclosed prior to or during the trial, when some use could have been made of the information by the defence.

When was the precognition disclosed?

64. The Commission is in no doubt that the Crown's policy is that their precognitions are not disclosed to the defence. However, it is plain from the fact that the applicant has possession of various Crown precognitions, including that of Mr Livingstone, that the precognitions must have been disclosed to the applicant or to his representatives at some stage. The applicant's position is that he received these precognitions in June 1982, and in support of this claim he referred to a letter he sent at that time in relation to his appeal. One of his arguments at appeal was that evidence should be heard from David Livingstone. His position is that he had received the precognitions from his trial solicitor, Mr Keegan. In support of that claim he referred to an account of Allan Rae, a defence witness, which the applicant submitted is also a Crown precognition, and which he claimed had Mr Keegan's handwriting and signature on it.

65. The Commission notes that, although the applicant described the Allan Rae account as a Crown precognition, it is not in the same format as the Crown precognitions of Crown witnesses e.g. the heading is set out differently and unlike most of the Crown precognitions of Crown witnesses it does not bear an image of the Crown seal at the top and it does not end with initials of the precognoscer. On the other hand, it is in the same format as one of two precognitions of another witness, Nora Harley. The second of Mrs Harley's precognitions is clearly a defence precognition, which might suggest that the first precognition, and therefore also the Allan Rae account, is indeed a Crown precognition.Indeed, as the applicant pointed out in his submissions, he has a letter from a representative from Crown Office dated 7 April 2006 which accepts that the first precognition of MrsHarley appears to be a Crown precognition. The Commission made enquires with Mr Keegan in relation to the handwriting on the Allan Rae precognition. Mr Keegan confirmed that one handwritten remark on the document was his, though not the signature. He had no idea about the provenance of the document.

66. It is apparent from the accounts Mr Keegan and defence counsel, Mr Taylor, gave to the Commission during a previous review of the applicant's case, and in other correspondence, that they do not know or cannot recall the timing or circumstances of the disclosure of Crown precognitions in the applicant's case. The Commission notes that no contemporaneous Crown or defence records are available which might clarify the date or circumstances in which the Crown precognitions were disclosed by the Crown and to whom.Crown Office confirmed that, although they hold some correspondence and minutes in relation to the applicant's case, the Crown do not have any information regarding disclosure to the defence at the time of trial.

67. Given the uncertainty over the circumstances of disclosure, prior to the issuing of the initial statement of reasons the Commission took the unusual step of contacting the advocate depute at trial, in case he might have any recollection of the applicant's case or of his own practice in relation to disclosure of Crown precognitions at the time. Unsurprisingly, he had

no memory of the applicant's case. His position was that as an advocate depute he would never have passed Crown precognitions into the possession of the defence, although on occasion he would allow defence counsel to read passages in his own copies of Crown precognitions whilst he retained the precognitions.

68. The Commission considers it more likely that disclosure of precognitions would be made to the applicant's solicitor rather than direct to the applicant himself, and Mr Keegan's handwriting on the Allan Rae account (assuming it is, as the Crown appears to accept, aCrown precognition) would support that suggestion. The Commission also recognises a point made by the Innocence Project that there would seem to be little reason why Mr Keegan would write a note on the Allan Rae precognition about the evidential significance of the witness's account after the trial had concluded, thus supporting the suggestion that that precognition was disclosed prior to or during the trial. On the other hand, this cannot be taken as confirmation that, by inference, all the other Crown precognitions, including those of witnesses who had been precognosced by the defence, were disclosed to Mr Keegan prior to or during the trial, even if on one view that also seems more likely. Indeed, despite their submissions on the Allan Rae account, the Innocence Project also suggest that the evidence gathered by the Commission, including the account of the advocate depute, appears to show the Crown precognition of David Livingstone almost certainly was not disclosed. Likewise the applicant's further submissions suggest his position is that he believes the Crown precognitions were disclosed prior to trial, yet he also suggests that the precognition ofDavid Livingstone might have been obtained by his solicitor for some reason post-trial, there being no reason for his solicitor to have requested this precognition prior to trial since the solicitor already had a defence precognition of this witness.

69. Having considered the further submissions, it remains the Commission's position that the precise timing and circumstances of the disclosure of the precognitions remains unknown. It also remains the case that, even if it could be said with certainty that the precognitions themselves were not disclosed prior to or during the trial, it is not known whether the advocate depute did in this case show any passages of the Crown precognitions to defence counsel, or indeed the specific passages of David Livingstone's precognition which are now the subject of scrutiny.

70. It is against the background of this continued uncertainty that the submissions on MrLivingstone's precognition must be considered, and the Commission addresses both disclosure and defective representation below. In doing so, however, the Commission has in mind what was said in the English Court of Appeal case of R v Hanratty [2002] 2 Cr. App.R. 30 on the effect the passage of time has on appeals (especially paragraph 99), quoted with approval by the High Court in Coubrough's Executrix v HMA 2010 SLT 577 (at paragraph36): there may well be an explanation for what took place that shows there to be no cause for suspicion that a miscarriage of justice has occurred, but because of the passage of time, and the loss of recollection and documentation, it is impossible now to discover it. This same difficulty affects not only the question about when the Crown precognition of Mr Livingstone was disclosed but also the question about why he was not called to give evidence. It also affects various of the other submissions the applicant has made, especially about defective representation: in a number of instances the passage of time has led to an absence of evidence of sufficient clarity to be satisfied about what took place at the trial, and in these circumstances it is difficult to conclude that a miscarriage of justice may have occurred.Applicable law on disclosure

71. The applicant's trial pre-dated the incorporation of the Convention into domestic law, but the common law duty of disclosure also predates the incorporation of the Convention: as the applicant himself pointed out, it has long been recognised that there is a duty of disclosure on the Crown; in McLeod v HMA 1998 SCCR 77 the High Court (though clearly influenced by the European Court of Human Rights in Edwards v United Kingdom (1992) 15 EHRR 242), held that the Crown has a duty to disclose to the defence information in its possession that would tend to exculpate the accused, or is likely to be of material assistance to the proper preparation or presentation of the accused's defence, as well as information in its possession and knowledge which is significant to any indicated line of defence, or which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt upon it. In Holland v HMA 2005 SCCR 417 it was accepted by the parties that this formulation was also an accurate description of the Crown's obligations under article 6(1) of the Convention. As regards Crown precognitions, it has long been said that these are confidential (see Downie v HMA 1952 JC 37) and this has been reiterated by the High Court (Fraser v HMA 2008 SCCR 407). However, the court in McLeod did not seek to restrict the Crown's duty of disclosure to particular classes of information and it has been acknowledged by the High Court that the Crown may be obliged to disclose information that was discovered during precognition, even if the precognition itself remains confidential (Fraser, Gair v HMA 2006 SCCR 419; Wotherspoon v HMA 1998 SCCR 615). The Supreme Court has confirmed that the obligation of disclosure applies to information disclosed at Crown precognition (Fraser v HMA 2011 SCCR 396 at paragraph 33; see also Holland). Where it can be said that material ought to have been disclosed by the Crown but was not, the test for whether a miscarriage of justice has resulted is that set out in the Supreme Court case of Mclnnes v HMA 2010 SCCR 286, namely whether, taking into account all the circumstances of the trial, there is a real possibility that the jury would have arrived at a different verdict if the undisclosed material had been in the possession of the defence.

Consideration of disclosure

72. The Commission is satisfied that the contents of the Crown precognition of MrLivingstone, at face value, are such that they could be said to undermine part of the Crown case and that disclosure should have been made.

73. Based on what defence counsel told the Commission during a previous review of the applicant's case, counsel could not recall any details about the applicant's case but his position was that, if the precognition had been disclosed, it was 'possible' he would have called Mr Livingstone to give evidence, and he referred to the witness's age at the time (56) as possibly being a factor that might have impressed a jury, and the fact that part of counsel's approach had been to analyse the discrepancies in the Crown witnesses' evidence.The Commission therefore accepts that the information in the precognition, if disclosed (and assuming it was not), might have caused the defence to lead the witness.

74. However, given the passage of time and the absence of contemporary records, theCommission remains of the view that it is impossible now to be certain that the witness would in fact have been called had the information in his Crown precognition been known to the defence; the Commission remains of the view that other considerations might well have existed at the time but which are unknown now which might have affected the decision not to lead this witness (and see further below in relation to defective representation).Although these concerns have been dismissed as speculation in the further submissions the

Commission has received, they reflect the difficulties identified in Hanratty (see paragraph 70, above).

75. If one proceeds on the assumption that, had Mr Livingstone given evidence, he would have spoken to his description of the driver as 40 and with a moustache, the Commission does recognise the argument that, since identification of the driver of the getaway vehicle was the crucial issue at the applicant's trial, this evidence from an independent witness which pointed to a driver of significantly different appearance to the applicant might have provided the reasonable doubt which would have altered the jury's majority verdict to one of acquittal.

76. On the other hand, the Commission can also see reasons why this evidence might not have altered the jury's verdict. In the first instance, Mr Livingstone conceded that his recollection was 'a little hazy', which can be contrasted with the certainty expressed by the two witnesses who positively identified the applicant. In addition, the Commission notes that there is no reference in any of the accounts of any of the other eyewitnesses, including those who gave evidence, to suggest that either assailant had a moustache, hi this respectMr Livingstone's description is out of step not only with the two eye witnesses who made positive identifications of the applicant, but with the weight of other known evidence in the case. Similarly, all the recorded estimates by other witnesses as to the ages of the assailants also described them as younger than Mr Livingstone's estimate of 40 years old: WilliamHorn is recorded in his Crown precognition as saying his assailant was in his early 20s, although according to the handwritten notes of his testimony at trial Mr Horn described the perpetrator as 'mid-30s'; Jacqueline Tiffney's Crown precognition refers to the man she saw as about 20 years old; Kenneth Ashford described the driver of the getaway car as mid-20s;Anne Callan described the perpetrators as 'young'; Jean Clark in her Crown precognition said both perpetrators seemed to be in their mid-20s. When combined with his 'hazy' recollection, in the Commission's view the reliability of Mr Livingstone's description is open to question. Moreover, although the Crown precognition, if disclosed, could have provided a basis on which to question the witness, given that it is in the form of a precognition and not a statement, even if the defence had had possession of that information, it would not have been possible to put to the witness in evidence the terms of his prior description in the precognition (Al Megrahi v HMA 2000 SCCR 1003; Coll Petitioner 1977 SLT 58; Kerr v HMA 1958 JC 14; McNeilie v HMA 1929 SLT 145) which the Commission continues to believe diminishes the significance of the information.

77. Given that the Commission cannot establish either that the precognition was in fact not disclosed prior to or during the trial, or that the passage in question was not shown to defence counsel by the advocate depute, the Commission does not consider it necessary to reach a definitive conclusion here as to whether the information in the precognition is of such significance that the Mclnnes test is met: the Commission is simply unable to conclude that the Crown did in fact fail to disclose this information, and therefore that a miscarriage of justice may have occurred as a result of such a failure to disclose the information in question.

Applicable law on defective representation

78. The following principles apply in relation to defective representation, as derived from decisions of the appeal court.

79. The conduct of an accused's defence can be said to amount to a miscarriage of justice only where it has deprived him of a fair trial (Anderson v HMA 1996 JC 29; E v HMA 2002

SCCR 341; Jeffrey v HMA 2002 SCCR 822). A fair trial is denied to an accused where his defence was not presented (Anderson v HMA; Mclntyre v HMA 1998 SCCR 379; Grant vHMA 2006 SCCR 365; DS v HMA 2009 SCCR 929) or was not presented properly (E vHMA; McBrearty v HMA 2004 SCCR 337; Grant v HMA); a fair trial may also be denied where counsel's exercise of discretion in conducting an accused's defence was 'contrary to the promptings of reason and good sense' (Mclntyre v HMA).

80. The accused's right to a fair trial should not be viewed as involving a right to a retrial simply because things might have been done differently by counsel: there can be no miscarriage of justice if counsel conducts the defence within the instructions given to him according to his own professional judgment as to what is in the best interests of his client(Anderson v HMA; Grant v HMA); counsel is not obliged to follow a client's instructions as to whether particular witnesses should be called in the presentation of the instructed line of defence (Hughes v Thomson 2010 SCCR 492); and there can be no miscarriage of justice where all that is suggested is that with the benefit of hindsight it can been seen that the defence could have been stronger or that better judgments could have been made on strategic matters (Ditta v HMA 2002 SCCR 891). Lawyers preparing for trial have to bring a 'professional and practical judgement' to the extent to which matters require investigation.It is 'not every single, conceivable or remote stone which must be turned in preparation for trial'; regard must be had to what is reasonable and practical. A 'counsel of perfection' is not the relevant test even where it can be demonstrated that a defence enquiry could have revealed an answer favourable to the defence (Urquhart v HMA 2009 SCCR 339).81. A finding by an appeal court that an advocate or solicitor has failed in his professional responsibilities is a serious judgment that should be made only on clear and cogent evidence (Campbell v HMA 2004 SCCR 220). An appeal based on alleged defective representation should not be put forward unless the grounds specify the allegation on all material points and there is objective support for it (Grant v HMA). An argument of defective representation can take the appellant nowhere unless he can show what information would have been revealed if the preparation of the case had been conducted adequately, and how the absence of that information prejudiced the defence (Mclntosh v HMA 1997 SCCR 389).

82. It is plain from the authorities that the circumstances in which a claim of defective representation will be upheld are defined narrowly (see e.g. Anderson v HMA at page 44) and will occur only where the circumstances are exceptional in nature (e.g. Anderson at page 40).

Consideration of defective representation

83. It is apparent that none of the applicant's representatives at trial retain a detailed recollection of the events at the applicant's trial. As indicated, no contemporary defence papers remain that could provide material assistance in resolving the applicant's claims of defective representation.

84. The Commission considers that, in light of the doubts explored above as to whether or not the precognition in question was disclosed to the defence prior to or during the trial, the type of 'clear and cogent evidence' required to sustain an argument of defective representation is simply not present here: since the Commission cannot establish for certain whether or not counsel had the precognition or was aware of its contents, it is not possible for the Commission to conclude that his representation of the applicant may have been defective on this point.

85. However, even if for the purposes of addressing the applicant's ground the Commission proceeds on the assumption that the precognition was disclosed prior to or during the trial, the Commission does not believe there is sufficient clear and cogent evidence to establish that the applicant's trial was rendered unfair by way of defective representation. What is clear to the Commission is that it cannot be argued that the applicant's instructed defence of alibi was not presented, or presented properly, in court: as is apparent from the summary in the 'Defence Case' section above, a number of witnesses, including the applicant himself, were led in support of that defence. The alibi could in no way be said to depend upon Mr Livingstone's account. It is also clear, despite submissions from the applicant to the contrary, that the identification evidence was attacked by defence counsel in various respects, so that it cannot be inferred that counsel failed to appreciate the importance of undermining that evidence or that he failed to challenge that evidence.Indeed, a submission of no case to answer was made on the applicant's behalf which, from the handwritten notes of the trial, appears to have involved an attack on the quality of the identification evidence.

86. The Innocence Project and the applicant both submitted it to be fundamental that, whether or not the precognition was disclosed to the applicant's representatives, it was not disclosed to the applicant himself, so that he was not reasonably well informed about the existence of evidence on which he might wish to rely, depriving him of the chance to instruct counsel competently as to his defence. The Commission does not agree that the applicant's ability to instruct his defence was affected in any material way by his lack of knowledge of Mr Livingstone's possible evidence. The applicant was still able to give full instructions in relation to his alibi defence. At most, knowledge of Mr Livingstone's account would have allowed the applicant the opportunity to express his view on whether Mr Livingstone should give evidence. Ultimately, the decision whether or not to lead a particular witness is a matter of tactics for the professional judgement of counsel; counsel is not obliged to follow any instruction given by an accused as to which witnesses should be called in support of the instructed defence (Hughes v Thomson).

87. Whilst on the face of the available accounts of Mr Livingstone it might be argued that the applicant's defence would have been stronger had the witness given evidence, of itself that does not satisfy the test for defective representation. Although it is also submitted by the Innocence Project that, if disclosed, it would have been 'remarkable' if the defence did not seek to lead evidence from Mr Livingstone, the Commission maintains the view that it is simply not known what the basis was of the decision not to call Mr Livingstone (assuming the contents of the precognition were disclosed), or whether other considerations existed at the time but of which there is no longer any record. In these circumstances the Commission remains unable to conclude that the conduct of the applicant's representatives was defective, let alone so contrary to the promptings of reason and good sense that the applicant's trial was rendered unfair. Various further allegations of defective representation are addressed below.

Conclusions regarding the Crown precognition of David Livingstone

88. The Commission does have concerns that, for whatever reason, the jury reached its verdict in ignorance of what, prima facie, is evidence undermining the positive identifications on which the Crown relied. In the Commission's view, however, in consequence of the uncertainties surrounding disclosure of the precognition in question and surrounding the reasons why Mr Livingstone did not give evidence, the Commission is unable to conclude

that a miscarriage of justice may have occurred either on the basis of a failure to disclose the precognition or a failure in the representation of the applicant at trial.Although the Innocence Project suggest that the available evidence, whilst not proof positive that a miscarriage of justice has occurred, is also insufficient for the Commission to conclude that there has not been a miscarriage of justice, so that in the absence of certainty the only possible conclusion is that there may have been a miscarriage of justice, the Commission considers that it requires something more concrete than is available here before it will reach the conclusion that a miscarriage of justice may have occurred; on the present evidence the Commission finds itself unable to reach a justifiable conclusion about when and in what circumstances the precognition was disclosed.

The second identification parade

89. In addition to raising concerns about the identification parade the applicant also made submissions about a second identification parade that took place in relation to the robbery.He stated that it was only after his trial that he became aware of the significance of this second parade. He stated that an associate of his, David Martin, had appeared at that parade and Mr Martin told him post-trial that a witness had positively identified someone at the second parade. The applicant's principal submission was that, on analysis of the witness accounts, it could only have been Nigel Muckle that had identified someone at the second parade, which undermined Mr Muckle's identification of the applicant as Mr Muckle had said he saw the face of only one of the perpetrators. Again it was argued that the failure to disclose details of the second parade had caused a miscarriage of justice, and separately it was suggested to be defective representation for the applicant's solicitor to fail to request a copy of the second parade report as this denied the applicant the opportunity to challenge Mr Muckle's identification.

90. There is no doubt that a second identification parade took place: reference is made to it in a number of Crown and defence precognitions. It seems clear that the second parade was held in an attempt to identify the second man involved in the robbery i.e. the passenger in the getaway car, the applicant having already been identified at the first parade. However, no other details of the second parade are available in the documents the Commission has seen. In none of the accounts of the witnesses is there any indication that any witness picked anyone out at that parade. There is no reference to the second parade in the accounts of Mr Muckle, but his position at interview with the Commission was that he was confident he had attended a second parade and was clear that he had not identified anyone at that parade.

91. The Innocence Project submitted that in the absence of other information, theCommission should interview David Martin to obtain his account of the second parade, a description of the witness who picked out someone and a description of the person selected.Although the Commission saw difficulties with any potential account from Mr Martin (leaving aside the passage of time, suspects do not see witnesses who attend parades as one way glass is used) the Commission considered it appropriate at least to obtain an account from Mr Martin, lest anything of significance transpire. A legal officer interviewed MrMartin and obtained a statement from him about a number of issues, including the second identification parade. The statement was sent to Mr Martin to sign and return but, despite various reminders, he did not do so.

92. In short, Mr Martin confirmed that he was taken by police to stand in an identification parade in Livingston in relation to the robbery for which the applicant had been arrested, as

he was a 'known associate' of the applicant, but that nobody picked him out. His position, though inevitably somewhat vague, was that at least two witnesses picked out stand-ins at the parade, and he thought one stand-in might have been picked out more than once, but he was not able to remember what the stand-ins looked like or any details of who the witnesses were or what they or anyone else at the parade had said. He could not remember what police officers were involved or who his solicitor was at the parade, or even if he had had a solicitor there.

93. In the Commission's view, Mr Martin's account does not offer any information about the second identification parade upon which a conclusion could be drawn that a miscarriage of justice may have occurred in the applicant's case. Whilst it may well be, as Mr Martin himself asserted, that he had no motivation to say anything in the applicant's favour, his account is vague and at best suggests that more than one unknown witness picked out one or more stand-ins at the parade, which does not advance the position significantly from what the applicant stated it to be. It does not offer any concrete support for the applicant's suggestion that it was Mr Muckle who picked someone out at the second parade, and Mr Muckle denies having done so. The Commission notes that all the indications are that Mr Muckle identified the applicant by photograph and at the first identification parade and that he was consistent in his certainty that the applicant was the person he had seen. It remains, in the Commission's view, inherently unlikely that Mr Muckle, having positively identified the applicant and having stated his certainty about this identification, would then have picked out a different person at the second parade, which was held with a view to obtaining evidence against the person the police suspected was the applicant's accomplice, as being the same person he had earlier identified the applicant as being. In any event, given the continued lack of available information it is not possible in the circumstances for the Commission to conclude that there was anything in the possession of the Crown in relation to the second parade which the Crown might have had an obligation to disclose but which it failed to disclose. Indeed, given the passage of time and absence of records, it cannot be said with certainty that the Crown did not provide information about the second parade to the defence at the time.

94. There is no doubt that the fact that a second parade took place was known to the defence prior to trial as reference was made to it in various defence precognitions. Assuming that the applicant is correct in stating that his representatives failed to request details of that second parade, and assuming that the Crown did not volunteer information about that parade, in the absence of clear and cogent evidence to demonstrate what information would have been obtained and how the absence of that information prejudiced the defence, there is, in the Commission's view, no basis to believe a miscarriage of justice may have occurred as a result of defective representation.

Crown precognition of William Horn

95. Connected to the issue of the second identification parade are submissions on the Crown precognition of the complainer William Horn. The applicant referred in particular to a passage in which Mr Horn was recorded as stating that he attended the second parade a few days after the first and said that he thought nobody in the parade was involved in the attack on him. He then stated that 'Later on I wondered if the man at No.5 had been my assailant but this is the first time (at precognition) that I have even mentioned this.' The applicant submitted that this had not been disclosed to the defence and that it was similar to the failure to disclose in Holland v HMA. The applicant also submitted that, if disclosed, it was defective representation for his representatives not to have challenged Mr Horn's evidence on the basis

of the comment in the precognition. He made further submissions along these lines. In the further submissions the Innocence Project submitted that although, as the Commission had pointed out, the judge suggested to the jury that Mr Horn's evidence was 'undoubtedly weak', it could not be said to have no bearing on the jury, since the judge reminded the jury that the witness saw the perpetrator's face, his eyes, eyebrows, nose, mouth and part of his chin, thus enough for him to attempt an identification, and that in these circumstances the defence should have had, or should have pursued, the opportunity to ask Mr Horn if he had had any subsequent doubts about his resemblance identification of the applicant.

96. The same doubts about the circumstances of disclosure of the David LivingstoneCrown precognition apply equally to the disclosure of Mr Horn's Crown precognition.Again, arguments are made both about disclosure and defective representation. However, even if the Commission proceeds on the assumption that the precognition was not disclosed, the fact remains that the jury was specifically directed by the trial judge that Mr Horn's identification evidence was 'unsatisfactory'. It was the two positive identifications of the applicant, by Mr Muckle and Mr Ashford, which the jury were directed, if they accepted, comprised the satisfactory evidence of the applicant's guilt. In these circumstances, theCommission does not believe there is a real possibility that the jury's verdict would have been any different, had the comment in the precognition been known to the defence (and assuming it was not). For similar reasons, if it is assumed that the precognition was disclosed to the defence prior to Mr Horn's testimony, the Commission does not believe the failure to challenge the witness about the second parade on the basis of the comment in the precognition is a matter of significant consequence, let alone that it was of such importance to the applicant's defence that the failure to do so rendered the trial unfair by dint of defective representation.

97. The Commission has also considered an argument from both the Innocence Project and the applicant that the cumulative effect of the matters relating to David Livingstone,William Horn and David Martin supports the conclusion that a miscarriage of justice may have occurred. The Commission does not accept that any real weight is added to the argument when these issues are considered in combination, especially as the doubts about whether there was disclosure are not lessened by considering the matters together. TheCommission therefore does not believe that, in cumulo, a miscarriage of justice may have occurred on these matters.

Enquiries with Lothian and Borders Police

Forensic evidence

98. The Commission was informed by Lothian and Borders Police during previous reviews of the applicant's case that all materials in relation to the case had been disposed of.The Commission nevertheless made further enquiries with the police during the present review, including providing them with a copy of the forensic report dated 19 January 1982 (which formed Crown production number 16 at the trial) and making specific requests in relation to any samples that might have been retained, including in relation to an anorak recorded as having been found in the graveyard at Kirkliston next to where the getaway car had been abandoned (this anorak formed Crown label production number one at the trial).Subsequently the Commission was contacted by Lothian and Borders Forensic Services.They were able to find only one item relating to the applicant's case, namely the handwritten notes of one of the scientists who carried out the examinations and prepared the forensic

report (see below). It was confirmed to the Commission that searches had been conducted for any forensic samples or other materials in relation to the case but that none had been found.

99. The Commission examined the copy of the scientist's handwritten notes and compared it to the terms of the forensic report. The forensic report states in relation to the anorak labelled as having been found in Kirkliston 'The anorak was examined for blood with a negative result. Nothing of significance was found.' However, in the handwritten notes the entry in relation to this same anorak states '1 hair lower back middle o/s. V fine. Pale brown dyed slightly darker.'

100. In relation to the parka jacket labelled as having been found in the applicant's house(Crown label production number two at the trial), the forensic report states 'The jacket was examined for blood with a negative result. Nothing of significance was found.' However, in the handwritten notes the entry in relation to this same parka jacket states '1 Hair from left cuff. Very fine short - Not from David Martin.'

101. The forensic scientist's handwritten notes therefore reveal that a hair was found on each of the two jackets lodged as productions in this case, but was not referred to in the forensic report produced for trial. The forensic scientists had samples of hair from the applicant and from David Martin (who as stated above was suspected of having been the applicant's accomplice in the robbery). It can be inferred from the fact that 'nothing of significance was found' on either jacket that the hair found on each did not match either the applicant or David Martin (although since the parka jacket was found in the applicant's home, had the hair on it matched the applicant's hair this would not have been of any evidential significance).

102. It is not known whether the information in the scientist's handwritten notes was disclosed to the defence in some form prior to trial. It seems likely that, since the report itself was disclosed, the information in the handwritten notes would not have been disclosed and that it was therefore not known to the defence that an unidentified hair had been found on the anorak recovered from the Kirkliston graveyard. On the other hand, the fact that the police obtained samples of hair from the applicant and Mr Martin must at least have given rise to the inference that the police had something to compare those samples to.

103. The applicant submitted in his further submissions that the jury's decision might have been different had they known of the unidentified hair on the jacket at Kirkliston and that the police obviously considered it to be of significance, otherwise they would not have sought samples from the applicant and Mr Martin for comparison. However, the Commission's approach to this evidence remains as stated in the initial statement of reasons: had the hair apparently found on the anorak been available for examination now, the Commission would have conducted further enquiries in relation to it, but in the absence of the hair itself, the Commission must assess its possible significance in the context of what is known. The anorak was found in the graveyard the day following the robbery. Even if the anorak was worn by one of the men responsible for the robbery, it cannot be assumed that the single hair found on the anorak did come from that person, as opposed to from someone else who came into contact with the jacket before, during or after the robbery, or as a result of transference to the anorak from the interior of the car whilst the wearer was in the car.The anorak could have been worn by the person said to have accompanied the applicant, rather than the applicant himself. In short, the Commission remains of the view that the existence of a single unidentified hair on the anorak does little to exclude the applicant from involvement in the offence. For these reasons, assuming the information about the hair was

not known to the defence, in the Commission's view, there is no real possibility that the jury's verdict would have been different, had the information now known about this hair been known to the defence at the time. Having said that, it is hardly satisfactory that the existence of the hair on the jacket found in Kirkliston appears not to have been disclosed to the defence at the time.

104. Connected to this issue was a criticism by the applicant of his representatives at trial for failing to lead evidence of the forensic report. The report recorded that nothing of evidential significance was found on the items examined (i.e. the two jackets referred to above and the two hammers recovered from the applicant's home). The Commission's view remains that, assuming the applicant is correct that his representatives did not highlight the absence of any forensic link between the applicant and the crime, this does not meet the test for defective representation as summarised at paragraph 79 et seq, above. The jury was directed to proceed solely on the evidence heard at the trial i.e. in the absence of any forensic evidence. In the Commission's view it cannot be said that any failure to draw specific attention to the absence of such evidence resulted in the applicant's defence of alibi not being led or led properly, or that it was otherwise so contrary to the promptings of reason and good sense that it denied the applicant a fair trial.

Photographs of the applicant

105. Despite Lothian and Borders Police having assured the Commission that they retained no materials relating to the applicant's case, subsequent to issuing the initial statement of reasons the applicant provided the Commission with a copy of photographs of himself and a document he described as a 'crime report', both relating to the 1981 robbery, which he had obtained from Lothian and Borders Police in 2005 after making a request under the Data Protection Act 1998. The Commission challenged the police as to why they had been able to supply the applicant with these items when, prior to and subsequent to doing so, they had indicated to the Commission that no material remained. The explanation offered in response was to the effect that the records in question were not held by Lothian and Borders Police but by the ACPO Criminal Records Office (ACRO) in England, the records having been sent to ACRO's predecessor organisation around the time of the applicant's case to accompany fingerprints of the applicant. The records were then stored on microfiche by that organisation. Lothian and Borders Police were unable to explain how it had come to be that the applicant had been provided with a copy of these documents in 2005 because the files relating to his data protection request were destroyed in 2009, in line with standard periods for retention of such papers. However, it was pointed out (and is apparent from the documents themselves) that the records in question do not comprise a 'crime report' or 'police report', although that is how the police had described them when they had provided the applicant with a copy in 2005. They are simply forms containing basic details about the applicant and the offence, including photographs of the applicant, which were sent to ACRO's predecessor to accompany fingerprints.

106. The foregoing situation is self-evidently unsatisfactory, since the police were able to provide the applicant with records regarding his case when the Commission had been informed that no records remained. However, the Commission accepts that the records in question were held by ACRO rather than Lothian and Borders Police; the Commission does not agree with the applicant's view that the police have been demonstrated to have made deliberate attempts to suppress information from the Commission. Ultimately, this episode

led to the Commission obtaining some further information about Alexander Hardie, as described further below.

Enquiries in relation to Alexander Hardie

107. The applicant submitted to the Commission that he knew the identities of the true perpetrators of the robbery. He named them as Alexander Hardie and Ronnie MacDonald.He stated that he discovered this information in prison whilst serving his sentence for the robbery. He accepted that the information he had was 'prison talk', and that he had no evidence that the men in question had made any actual admissions. However, under reference to Neeson v HMA [2006] HCJAC 68 he pointed out that one of the men he had named, Alexander Hardie, was now deceased. He submitted that enquiries could be made with Mr Hardie's family members, as Mr Hardie might have confessed his involvement to them prior to his death.

108. In general the Commission will not simply pursue investigations into speculative allegations that an applicant makes; there must be some basis upon which to justify such enquiries. However, given the particular circumstances and history of the applicant's case, the Commission decided it was appropriate to make some enquiries into the alleged involvement of Mr Hardie. The Commission conducted a number of enquiries prior to issuing its initial statement of reasons. In light of further submissions received thereafter, the Commission conducted a limited number of further enquiries in this matter. Summaries of all these enquiries are set out below.

109. The Commission obtained a copy of Mr Hardie's previous convictions. The Commission noted from this that Mr Hardie had a number of previous convictions in the 1960s, including for theft by housebreaking. He was convicted of culpable homicide on 7 July 1967 and was imprisoned for 12 years. He was then convicted of an assault and robbery at Glasgow High Court on 22 March 1977 and was sentenced to 7 years imprisonment. His next conviction was on 29 March 1984 for malicious mischief, for which he was imprisoned for 3 months. His remaining previous convictions were more minor in nature.

110. The Commission obtained papers from Justiciary Office in relation to Mr Hardie's assault and robbery conviction, to check for any similarities between that offence and the crime of which the applicant was convicted, but (despite submissions by the applicant to the contrary) there are no similarities of particular significance, which might support the inference that the perpetrator of this robbery must also have committed the crime of which the applicant was convicted: the robbery involved Mr Hardie, whilst his face was masked, entering a shop in the Gallowgate in Glasgow and presenting a knife at the occupants, threatening them with violence and demanding money and rings. The minutes of trial confirm that the sentence passed on 22 March 1977 was one of 7 years imprisonment.There is no record in the minutes that the sentence was backdated.

111. The Commission understands that at the time of Mr Hardie's 7 year sentence, the practice under the remission system for release of prisoners was that one third of any determinate sentence would be deducted automatically, and that the deduction would be lost only as a result of breach of prison discipline; and that, in terms of section 67 of the Criminal Justice Act 1967, Mr Hardie would have been eligible for parole after serving one third of his sentence.

112. The Commission sought details from the Scottish Prison Service (SPS) in relation toMr Hardie's incarceration, and in particular whether he was in prison during December1981. However, SPS informed the Commission that they do not have any information in relation to Mr Hardie; their electronic records do not go back that far and generally documentation on prisoners is destroyed after five years if they are not serving a life sentence. In light of this, it is not known whether Mr Hardie was indeed released after two thirds (i.e. 4 years and 8 months) of his 7 year sentence, in which case he would have been released in November 1981, or whether because of some breach of prison discipline he did not receive his full one third remission of sentence, in which case he might still have been in prison at the time of the offence of which the applicant was convicted (although see below in relation to police records now obtained which may support the view that Mr Hardie was at liberty at least by the end of December 1981).

113. The Commission obtained an extract copy of Mr Hardie's death certificate. With the assistance of sheriff officers, and through information obtained from the individual who registered Mr Hardie's death, the Commission was able to contact the step-brother of Mr Hardie by telephone.

114. Mr Hardie's step-brother confirmed that he was Mr Hardie's closest living relative and next of kin, and that he had been brought up with Mr Hardie. He recalled that Mr Hardie had been convicted of a robbery at a jeweller's in the Gallowgate in Glasgow which had resulted in a 7 year prison sentence. It was explained to him that the Commission was looking into a robbery of a post office van in Livingston in December 1981. He thought he could remember it. He asked whether it was believed that Mr Hardie had been involved in the robbery and when this was confirmed to him he stated that he could believe that Mr Hardie would have been involved, but that Mr Hardie had not told him anything about it.He said that Mr Hardie would not tell him that kind of thing. He said Mr Hardie had a girlfriend for many years. She was Mr Hardie's girlfriend in the 1980s and they lived together. He gave a first name for her but was not certain of her surname. He suggested that if Mr Hardie had told anyone about the robbery, it would have been her. He stated that Mr Hardie had split up from her about 5 years before he died.

115. It was suggested to Mr Hardie's step-brother that the robbery took place shortly after the time Mr Hardie would have been released from prison for the jewellery robbery. He stated that he believed Mr Hardie was 'active' just after his release from prison, that he knew this because he was Mr Hardie's brother and because they knew things about each other, and he knew the type of crowd with which Mr Hardie associated. However, he reiterated that Mr Hardie had definitely not told him anything about being involved in the robbery in Livingston. He was given further details about the Livingston robbery and he reiterated that it was definitely the type of thing Mr Hardie would have been involved in, and that he would certainly believe it if it was said that Mr Hardie had been involved. The importance of the matter was emphasised to him and he responded that he would have no problem telling the Commission about it if Mr Hardie had said something to him but he repeated that Mr Hardie had not said anything to him about the Livingston robbery. He then said that he remembered that in Christmas 1981 Mr Hardie was spending a lot of money.He said Mr Hardie turned up at his house at Christmas with bundles of presents for the children. He said he remembered this because he had not seen Mr Hardie for a long time while Mr Hardie was in prison. He said he would have expected Mr Hardie to come straight to him when Mr Hardie was released, but Mr Hardie had not done so. When Mr Hardie

turned up at Christmas Mr Hardie told him that he had not wanted to arrive there with no money so he had done some jobs first.

116. Mr Hardie's step-brother undertook to try and obtain an address for Mr Hardie's exgirlfriend and to provide this to the Commission. However, despite being contacted by theCommission a number of times thereafter, no further information was forthcoming.

117. On the basis of the information Mr Hardie's step-brother provided, and other information the Commission was able to establish about Mr Hardie's former addresses, the Commission instructed sheriff officers to trace Mr Hardie's ex-girlfriend. However, sheriff officers were unsuccessful in establishing an address for her. The Commission did trace another individual, Mr G known from the case of Neeson v HMA to have been a friend of Mr Hardie's at around the relevant time, hi Neeson, which proceeded after a referral from the Commission, there was fresh evidence in the form of affidavits from Mr Hardie and another man, and testimony from Mr G, which was to the effect that a Crown witness at the appellant's trial, whose evidence of admissions made by the appellant had been crucial to the appellant's conviction for murder, had admitted post-trial having falsifying that evidence. The fresh evidence, including Mr G’s testimony, was considered by the appeal court not to be capable of being regarded as credible and reliable (see the court's opinion at paragraphs 16 to 21), the court stating in relation to Mr G that it had come to the clear conclusion that the overall impression created by his evidence was that it was not capable of being regarded as credible and reliable, nor was it of such consistency and cogency as to lead to the conclusion that in its absence a miscarriage of justice must have occurred in the appellant's case. Nevertheless, the Commission considered it possible that Mr G might have information about Mr Hardie that might assist the Commission's enquiries in the applicant's case. A legal officer interviewed Mr G in the Commission's offices and also over the telephone.

118. Mr G confirmed to the Commission that he knew Mr Hardie. They first met in prison in 1967 when Mr Hardie was serving his sentence for culpable homicide. Mr G got to know him very well. He was married to Mr Hardie's half-sister. Mr Hardie lived with them for a period after his release from prison on the culpable homicide conviction, and was very close with Mr G's family. For some time during the early 1980s they also lived in the same close as each other in Glasgow. Mr G indicated that he remained in regular contact with Mr Hardie until Mr Hardie's death.

119. It was explained to Mr G that the Commission wished to discuss with him an assault and robbery that took place in December 1981. Mr G volunteered that he andMr Hardie were part of a group of individuals who worked together to commit robberies.The group also included Ronnie MacDonald. Mr G stated that, apart from himself, all members of the group were now dead.

120. It was explained to Mr G that the robbery the Commission was interested in may have taken place not long after Mr Hardie was released from prison for another robbery. MrG recalled that Mr Hardie was convicted of the robbery of a jeweller's shop and thatMr Hardie was sentenced to seven years imprisonment for that offence. Mr G said he was also imprisoned again for a period during Mr Hardie's seven year sentence and that he therefore met Mr Hardie again in prison during that time. Although Mr Hardie was generally very quiet in prison and would just get down and do his sentence, Mr G did recall that Mr Hardie once received 56 days isolation for some breach of prison rules.

However, Mr G could not recall whether that took place during Mr Hardie's sentence of 12 years for culpable homicide or if it was during the seven year sentence for the robbery (in which case, the Commission notes, this might have affected the date on which Mr Hardie was released from the seven year sentence, and might have affected Mr Hardie's ability to commit the robbery of which the applicant was convicted).

121. Mr G was informed that, if Mr Hardie had received a third off his seven year sentence for good behaviour, he would have been released in November 1981, shortly before the robbery the Commission was interested in. Mr G stated that he did have a memory of Mr Hardie coming out of prison during winter time, not long before Christmas.Mr G stated that he could recall this as he could remember that his children were excited that Mr Hardie would be getting out before Christmas. Mr G stated that, if he recalled correctly that Mr Hardie was released from his seven year sentence not long beforeChristmas, Mr Hardie would have been needing money. Mr G stated that payroll and takings would have been higher around Christmas time so Mr Hardie would have wanted to 'hit' them. He suggested that Mr Hardie would have done a job right away on his release from prison, so that he had money.

122. It was explained to Mr G that the robbery the Commission was interested in took place in Livingston on Saturday, 12 December 1981 and that it involved two post office workers collecting takings from a Safeway. Mr G stated that he recalled that MrHardie and Ronnie MacDonald did get involved in jobs in the east of Scotland. He stated that they became involved with a named person from Edinburgh and ended up doing jobs in the east, around the Edinburgh area, to keep them away from Glasgow for a while.

123. Mr G was asked how Mr Hardie would have gone about a robbery. He stated that Mr Hardie would normally mask his face, usually by doubling a scarf round his face.He was asked if Mr Hardie ever wore a balaclava; he said Mr Hardie might have worn one on occasion but normally it was just a scarf. Mr G stated that Mr Hardie would put the security guard, or whoever, 'down'. He explained that normally to do this Mr Hardie would only shout at the person to go down and he would not harm the person if the person did what he was told, but if there was any resistance at all then Mr Hardie would have had no hesitation in assaulting the security guard. Mr G said that Ronnie MacDonald was a bit less controlled and was more likely to go in and assault a guard without warning. MrG was asked if they would be armed with anything when they committed the robberies. He responded that they would often use a sawn-off shotgun. He was asked if they might have used anything other than a shotgun and he stated that they would have used anything, such as knives or clubs. He confirmed, in response to the legal officer's question, that they would certainly have used hammers or axes too at times.

124. It was explained to Mr G that in the robbery the Commission was interested in the two post office workers were struck by weapons, possibly hammers or axes, and that there did not seem to be much warning before they were assaulted. Mr G did not consider this surprising. He stated that it would depend on the job. He stated that if it was Mr Hardie and Mr MacDonald that were responsible they would have checked out the job first and would have got an idea of the type of person the security guard was. If there was any danger that the guards might put up a fight, then they might be struck without warning.

125. Mr G was informed that the robbery in question involved a car being stolen from the Clyde Port Authority car park on the Broomielaw in Glasgow on the day of the robbery, and

that the car was then used as the getaway vehicle. Mr G asked what sort of car was stolen and he was informed that it was a Granada, to which he responded by asserting that it would have been a Granada 2.8 as that was Ronnie MacDonald's favourite car. (In fact photographs of the car the Commission obtained from Crown Office show that it was aGranada 2.0.)

126. Mr G stated that the description of the robbery would fit with how Mr Hardie and the gang operated. He stated that they would buy cars like Ford Escorts from a car market in Glasgow, and then they would get someone to 'tidy the cars up', to make sure the cars were going well. They would then leave one of the cars in waiting a couple of miles, or maybe even less, from where they were planning to commit the robbery. They would then drive the getaway car to the Escort after the robbery, swap cars and get away in the Escort.Mr G stated that, if Mr Hardie and Mr MacDonald did the robbery in which theCommission was interested, they probably would not have stolen the Granada themselves, they would have got someone else to steal it to order.

127. Mr G was asked if either Mr Hardie or Mr MacDonald told him that they had been involved in the robbery the Commission was interested in. Mr G stated that he did not specifically remember them telling him about this robbery. He stated that he remembered being told that they were active in the area. He said it was 'certainly their kind of style'. He was asked if they would have told other people about their involvement. He suggested that they would have told anyone close to them, as they all used to talk about jobs and ask each other how jobs had gone. However, Mr G maintained that he could not remember being told about the specific job the Commission was concerned with. The legal officer informed Mr G that as the two men were running away after the robbery they crossed the path of a car and one of the men smashed the window of the car with the hammer or axe he was carrying. Mr G suggested that, if Mr Hardie and Mr MacDonald were involved, it would have been Mr MacDonald that smashed the window, but he stated that it did not assist him in remembering if Mr Hardie or Mr MacDonald told him about this specific robbery.

128. Mr G was asked if there was anyone else that Mr Hardie might have spoken to about the robbery, if Mr Hardie was involved in it. Mr G named one man, but stated that he had not been in contact with that man for years and did not have any further information about that man or his whereabouts which might assist in tracing that man. MrG had earlier confirmed that Mr Hardie lived with a woman for a long time. The first name of that woman was the same as that given to the Commission by Mr Hardie's stepbrother.Mr G was asked if Mr Hardie might have confided in that woman. Mr G doubted it, but did not rule out the possibility. He agreed to obtain contact details for that woman, who he said remained friendly with his ex-wife, but subsequently he was not forthcoming with these details. The Commission again attempted to trace this woman through sheriff officers and by other means, based on the further information Mr G had provided about her at interview, but these further attempts were unsuccessful. In any event, on further questioning of Mr G at the time of the Commission's interview, it appeared that Mr Hardie did not begin living with the woman in question until some time after December 1981, as Mr G suggested at interview that during 1982, when Mr Hardie and Mr G lived together in the same close in Glasgow, Mr Hardie was at that stage living with another woman. Mr G informed the Commission that this other woman is now dead.

129. Mr G was also asked to describe Mr Hardie and Mr MacDonald. He described

Mr MacDonald as short, maybe 5'4" or 5'6", but he was not sure. He said Mr MacDonald was broad, with curly hair, that he was fresh faced, he had a strong face. He thought MrMacDonald was perhaps 10 or 15 years younger than himself and Mr Hardie but he did not know Mr MacDonald's exact age. He described Mr Hardie as slimmer built, maybe a bit taller than Mr MacDonald although he suggested that Mr Hardie perhaps appeared taller than he was. He said Mr Hardie had thick dark hair and a thinnish face, with no beef on it.He also described Mr Hardie as stone-faced. He was asked if either man ever had a moustache but he said they did not. He was asked if he would describe either man as having a sharp or pointed face. He said Mr Hardie was like that. He described Mr Hardie as thin lipped, and with a head that was broader at the top than the bottom.

130. Following upon the foregoing enquiries and the issuing of the initial statement of reasons, the Commission requested further information from the police about Alex Hardie.Lothian and Borders Police indicated that they did not have any information about him in their local files. Eventually the Commission obtained copies of microfiche records regarding Mr Hardie from ACRO in England, via Strathclyde Police. Those records are said to comprise all the records the force has on Mr Hardie. As explained above, the Commission had previously obtained similar records from ACRO, relating to the applicant, via Lothian and Borders Police. Attempts were made to trace records relating to Ronnie MacDonald but the available information was not sufficient to identify any records in relation to him.131. The police records on Mr Hardie are dated between 1960 and 1988 and include various recorded descriptions of him. His height is variously recorded as between 5'6 and5'8 (the applicant is recorded as 5'9); his build was usually recorded as medium but latterly (including in the 1980s) as slim (the applicant was recorded as slim in the police records and medium build in the ID parade report); his complexion as fresh (though one description suggested he had a pockmarked face; the applicant's complexion was also 'fresh'); his hair as dark brown (like the applicant's) and his eyes as brown (again like the applicant's).Although there are therefore a number of similarities between the applicant and Mr Hardie, the Commission also notes that Mr Hardie was over 19 years older than the applicant.

132. The records relating to Mr Hardie also contain 'mugshot' photographs of him, dating from 1976. The Commission decided not to show these photographs to Mr Ashford or MrMuckle because of the low quality nature of the photographs, the significant passage of time, and the fact that, whether accurate or not, the witnesses' memories of the getaway driver must now be considered tainted by their various exposures to and positive identifications of the applicant.

133. Two further pieces of information in the police records regarding Mr Hardie are worthy of mention. Firstly, it appears Mr Hardie was arrested on 30 December 1981 byLothian and Borders Police for assault and robbery, and appeared at Edinburgh SheriffCourt the following day. There are no further details of what the offence involved or where it took place. However, it does offer some support for the suggestion that Mr Hardie was at liberty around the time of the Livingston robbery, and that he was 'active' in the Lothian and Borders police area around that time. A further record in the police papers bears to record that at Linlithgow Sheriff Court on 24 February 1982 Mr Hardie pled not guilty to an assault and robbery and that no further proceedings were taken against him in that regard. It is not certain whether this appearance in court is connected to the offence for which he was arrested on 30 December 1981. The records also refer to Mr Hardie's release date from the 7 year sentence for the robbery at the jewellers as being 20 November 1981, which fits with the

Commission's estimate of Mr Hardie's likely release date, although the date in the police records appears to be the expected date of release rather than the date on which MrHardie was actually released from that sentence.

134. It is also of note that some of the descriptions of Mr Hardie in the police records indicate that he had a tattoo with a woman's forename on it from some time in the 1970s onwards. The name in question matches the name Mr Hardie's step-brother and Mr G both gave for the woman Mr Hardie might have confided in, and suggests that Mr Hardie's relationship with her pre-dated the robbery of which the applicant was convicted (contrary to what Mr G's statement to the Commission suggested). The Commission therefore made further efforts to try and trace the woman in question, without success.

Fresh evidence - applicable law

135. Section 106(3)(a) of the 1995 Act permits the hearing of appeals on the basis of the existence and significance of evidence which was not heard at the original proceedings.Section 106(3A) requires there to be a reasonable explanation for the evidence having not been heard at the original proceedings. Assuming the statutory requirements are met, the test applied by the court in assessing the significance of fresh evidence has been set out in a number of decisions, notably Al Megrahi v HMA 2002 SCCR 509, in which the court at page 584 summarised the approach that would be taken to such evidence:'... (2) In an appeal based on the existence and significance of additional evidence notheard at the trial, the court will quash the conviction if it is satisfied that the originaljury, if it had heard the new evidence, would have been bound to acquit.(3) Where the court cannot be satisfied that the jury would have been bound to acquit, itmay nevertheless be satisfied that a miscarriage of justice has occurred.45(4) Since setting aside the verdict of a jury is no light matter, before the court can holdthat there has been a miscarriage of justice it will require to be satisfied that theadditional evidence is not merely relevant but also of such significance that it will bereasonable to conclude that the verdict of the jury, reached in ignorance of its existence,must be regarded as a miscarriage of justice.(5) The decision on the issue of the significance of the additional evidence is for theappeal court, which will require to be satisfied that it is important and of such a kindand quality that it was likely that a reasonable jury properly directed would have foundit of material assistance in its consideration of a critical issue at the trial.(6) The appeal court will therefore require to be persuaded that the additional evidenceis (a) capable of being regarded as credible and reliable by a reasonable jury, and (b)likely to have had a material bearing on, or a material part to play in, the determinationby such a jury of a critical issue at the trial.'

Consideration

136. There are a number of features of the information the Commission has obtained aboutMr Hardie which add weight to the applicant's suggestion that he might have been involved in the Livingston robbery. At the time of that robbery Mr Hardie had previous convictions for armed robbery and serious violence. The weight of evidence seems to support the suggestion that he was released from a prison sentence for robbery shortly prior to the Livingston robbery. Mr Hardie's step-brother confirmed that Mr Hardie was 'active' shortly after his release. Although Mr Hardie was based in Glasgow (which was, of course, where the car

used as the getaway from the Livingston robbery was stolen), his friend Mr G confirmed that he was 'active' in the Lothian area, and he came to the attention of Lothian and Borders Police on suspicion of robbery in the same month as the Livingston robbery. Both Mr G and Mr Hardie's step-brother confirmed that the Livingston robbery fitted the type of crime Mr Hardie would have committed. His stepbrother even had a recollection that Mr Hardie was spending a lot of money at Christmas time following Mr Hardie's release from prison which, combined with Mr G's account, would support the inference that Mr Hardie had secured the cash by robbery.There is also the fact that Mr Hardie was of similar general appearance to the applicant, in relation to his build, complexion, hair and eye colour, and possibly also his height. There is also his facial description as given by Mr G: a thinnish, sharp or pointed face, which fits the description recorded as having been given by Mr Ashford.

137. However, the foregoing gives rise at best to suspicion that Mr Hardie may have been involved in the robbery. The fact of the matter remains that the robbery was perpetrated by two men, so that evidence against Mr Hardie does not itself exclude involvement by the applicant. Apart from Mr G's account, the Commission has been unable to uncover any further information about Mr MacDonald. Ultimately, the Commission has not uncovered any specific evidence which confirms the involvement of either Mr Hardie or Mr MacDonald in the robbery. The account Mr Hardie's step-brother provided offers only very general, vague support for the possibility that Mr Hardie was one of those responsible. Likewise Mr G's account does not provide any specific evidence to confirm the involvement of either Mr Hardie or Mr MacDonald, and again offers only general support for the possibility that they were responsible. There is nothing in the information uncovered that excludes the applicant's involvement in the offence. Leaving aside any questions of credibility and reliability of the evidence, and assuming it is correct that the applicant first became aware of the suggestion that Mr Hardie and Mr MacDonald were involved only after his trial was over so that there is a reasonable explanation why the evidence was not heard at trial, the Commission is not persuaded that the available evidence is of such significance that it would have had a material bearing upon the jury's consideration of the critical issues at the applicant's trial. The Commission therefore does not believe that a miscarriage of justice may have occurred in relation to this matter.

Other enquiries

138. In this section the Commission has set out certain other enquiries it conducted after receipt of the further submissions from the applicant and the Innocence Project, and has addressed briefly a number of other grounds the applicant raised.

Evidence regarding journey times

139. The applicant submitted that there was no expert evidence led of the time it would take to travel from the locus to Kirkliston via Newbridge roundabout and then to Glasgow but that the evidence at trial, that it would take 30 minutes to get from Livingston to Glasgow High Court, was impossible.

140. The applicant's comment about the evidence at trial is reflected to some extent by the handwritten notes of the police officer DC Richard Peacock. The notes of this officer's evidence suggest that he said it took 30 minutes to get from Livingston to Glasgow Cross.

However, slightly further down the notes there is a record which appears to suggest that the journey time to the High Court was 40 or 50 minutes. It is therefore not clear exactly what the officer's evidence was. He does not refer to travelling times in his precognitions.

141. The Commission's legal officer conducted a locus inspection and recorded the time it took to travel by car from the locus via Newbridge roundabout to Kirkliston (where the getaway car was abandoned) and then to Glasgow. The total journey time from the locus via Kirkliston to the centre of Glasgow was almost exactly an hour. The journey from Kirkliston to Glasgow High Court took 47 minutes. It was of course impossible to recreate exactly the conditions that existed at the time of the robbery; no doubt road layouts, for example, are now different. Nevertheless, if anything can be read into the journey time obtained by the Commission, it is that it tends to support the position at trial that only the applicant and his partner could speak to the applicant's alibi for the crucial period of time: since the robbery took place at around 3.45pm and the applicant was seen by independent witnesses on a bus with his partner at St Enoch Square at 5.15pm at the very earliest, there was ample time for the applicant to have got back from Livingston via Kirkliston by then, especially as one witness described how the getaway car travelled from the locus at speeds in excess of lOOmph.

Evidence regarding visibility at the locus

142. The Commission also considered it appropriate to conduct further enquiries about visibility on the date and time of the robbery, following upon a suggestion that by the time of the robbery the lack of light would have made accurate identification more difficult. It was also submitted by the applicant that locus photographs taken after the robbery (whichformed a production at the trial) appeared to show ice or snow and suggested that it wasquite dark.

143. The robbery occurred at around 3.45pm on Saturday 12 December 1981. Through facilities on the Royal Observatory Edinburgh (ROE) website and the US NavalObservatory (USNO) website, the indications are that the sunset time at the locus on the date in question was 3.40pm, thus suggesting the robbery took place after the sun had set.This is worthy of note. However, as the ROE website states, sunset time does not necessarily equate to when it actually gets dark, particularly for northerly and southerly latitudes. The ROE website describes 'civil twilight' to be, as a rule of thumb, the time when it becomes too dark to perform detailed operations outdoors without artificial lighting.Civil twilight at the locus on 12 December 1981 was calculated at 4.27pm. The ROE website also points out that sunset time is not the same as lighting up time, as street lamps in the UK generally come on about half an hour after sunset.

144. The Commission also examined reports in the Scotsman and Glasgow Herald newspapers for the date of the robbery and for the following Monday, which included details of sunset and lighting up times respectively for Edinburgh (3.38pm and 4.08pm) andGlasgow (3.43pm and 4.13pm), the times of which support the indication that sunset at the locus was at 3.40pm and that lighting up would have been half an hour later. The Commission is unable to conclude, therefore, that absence of light undermined the ability of the witnesses to see the perpetrators.

145. The Commission also examined the details of the weather for the date of the robbery, as reported in the Glasgow Herald and Scotsman, but the information was, in the Commission's

view, not specific enough to draw any firm conclusions about visibility at the locus at the time of the robbery, and there was certainly nothing to suggest that the weather conditions might have made accurate identification more difficult, or to undermine the accounts of the two crucial witnesses, Mr Ashford and Mr Muckle, that it was a clear day.

Other submissions made by the applicant

Previous appeals

146. The applicant made various other submissions which he considered justified referral of his case to the High Court. For example, the applicant raised various criticisms of the fairness of previous proceedings relating to (1) his original appeal (including the lack of legal aid), (2) his attempted appeal in 2006 and (3) his attempt to petition the nobile officium in 2009/2010. The Commission is not persuaded that a miscarriage of justice may have occurred in relation to any of those matters but, in light of the Commission's decision below to refer his case to the High Court, and in effect to allow him the opportunity to pursue the appeal which he says was unfairly denied to him on those previous occasions, the Commission does not consider it necessary to explore his submissions in detail.

Validity of search warrant

147. The applicant made a number of submissions about the validity of the warrant under which he was arrested and his house searched. The arrest warrant related to a separate matter, an assault, unconnected to the robbery, and which the applicant denies any involvement in. The Commission considered arguments about this matter during previous reviews and remains of the view that no miscarriage of justice may have occurred. In reaching that view the Commission notes that according to the precognitions of the arresting officers, in addition to the arrest warrant for assault, the police were in possession of a separate search warrant which was lodged as Crown production number eight at the trial.No objection was raised at trial as to the validity of the search warrant or the admissibility of the evidence obtained from the applicant's house (which included two hammers, keys and an anorak). Although the applicant also submitted that the failure of his defence team to challenge the warrant amounted to defective representation, the Commission considers that there is a lack of clear and cogent evidence to support that claim.

Further claims of defective representation

148. The applicant also made various other submissions criticising his legal representatives for failing to prepare and present his trial properly. The Commission has addressed some examples of the applicant's submissions below but the Commission does not consider it necessary to address all the applicant's submissions in detail, having examined the substance of the applicant's grounds during previous reviews or in the initial statement of reasons. Ultimately, the Commission does not believe the clear and cogent evidence required to make out a claim of defective representation exists, particularly where it is plain that the applicant's defence of alibi was presented at trial and that, contrary to the applicant's submission, it is evident attempts were also made to undermine the identification evidence of the Crown witnesses.

149. One matter the applicant made submissions on was that numerous witnesses were identified but never precognosced by the defence, including various members of the

applicant's family, and it was argued that if Crown precognitions were not disclosed prior to trial for those witnesses for whom no defence precognitions were obtained, this compounded the defence failures as it left the defence without any accounts for a number of witnesses. The Commission addressed the alleged failures of the defence in this regard previously and remains of the view that no miscarriage of justice can be said to have occurred. In reaching that view the Commission observes that the applicant himself does not suggest that the witnesses in question, many of whom were members of his family, could support his alibi for the crucial period (reference is made below to the witnesses who could have done so) and the applicant did not seek to lead evidence from any of those witnesses at his appeal. It is only the account of his brother, Allan Rae, to which any specific reference is made by the applicant in his further submissions: it is submitted that Mr Rae could have spoken to the fact that he owned one of the two hammers recovered by the police from the applicant's house and could have testified that the applicant did not have possession of that hammer at the time of the robbery. That account can hardly be said to undermine the crucial evidence in the applicant's case, and in any event it appears from the handwritten notes of Louise Morris's evidence that she spoke to the fact that Mr Rae had brought the hammer to the applicant's house after the robbery.

150. The Commission has also previously rejected the suggestion, revisited by the applicant, that the failure of the defence to call Donald Shaw (see paragraph 47, above) amounted to defective representation, since in the Commission's view his account that Mr Muckle picked out the applicant at the identification parade very quickly was potentially double-edged. Despite the further submissions on this issue by the applicant, the Commission remains of that view.

151. The applicant repeated a complaint that counsel failed to ask a specific question of the witness Robert Hamilton, who the applicant submitted saw him during the crucial period and could therefore support his alibi; the Commission has addressed detailed grounds about this witness in the past and does not consider it necessary to revisit that aspect of the case here.

152. The Commission notes that the applicant appears to have proceeded on a misunderstanding that the defence was at a greater disadvantage if it proceeded to trial with only Crown precognitions of witnesses (assuming they were disclosed), rather than the defence obtaining its own accounts of those witnesses, as the Crown precognitions could not be put to the witnesses in evidence. In fact any defence precognition would fall to be treated the same as a Crown precognition: they are merely an indication of the likely evidence a witness will give; they are not admissible as evidence and would not be capable of being put to the witness in evidence.

153. The applicant also submitted numerous further matters that he argued should be raised with his trial representatives for comment. In light of their understandable lack of recollection of the details of the applicant's case, the Commission did not consider there would be merit in doing so.

Submissions regarding John McFadven

154. The applicant revisited issues relating to a witness, John McFadyen, who the applicant submitted was another person who could have provided independent evidence to support the applicant's alibi for the crucial period. The applicant suggested further enquiries the Commission could conduct in that regard and invited the Commission to accept that Mr

McFadyen visited the applicant in his house during the afternoon that the robbery took place. However, the Commission interviewed Mr McFadyen during a previous review and, having considered Mr McFadyen's account to the Commission, which did not assist the applicant, the Commission did not consider it necessary to conduct further enquiries on this matter. In reaching that view the Commission notes that Mr McFadyen's visit was not mentioned by the applicant in the alibi notice or in his judicial declaration, and in a pre-trial defence precognition, the applicant was recorded as being unsure whether Mr McFadyen had visited his house on the day of the robbery.

Commission's independence

155. The applicant questioned the independence and impartiality of the Commission, given that during part of a previous review one of the Commission's Board Members was WilliamTaylor QC, counsel who represented the applicant at trial and about whom the applicant had made various claims of defective representation. However, the Commission's standard procedures were followed where a conflict of interest exists: the conflict of interest was declared and Mr Taylor took no part in any consideration of the applicant's case. The applicant was informed of this by letter at the outset of the first review of his case. MrTaylor resigned from the Commission for unconnected reasons before any final decision was reached in any review of the applicant's case. The Commission therefore does not accept that its independence and impartiality was compromised.The jury's majority

156. The Commission also notes that the applicant has suggested a number of times that the jury's majority was eight votes to seven in favour of conviction, so that it would have required only one more juror to have entertained a reasonable doubt about the applicant's guilt for him to have secured an acquittal. The Commission, however, can see no formal record of the jury's majority: the transcript of the charge includes a transcription of the jury returning their verdict but there is no record of the majority being stated there; likewise the minutes of trial do not contain any record of what the jury's majority was. A majority verdict is still a verdict, regardless of what the majority is.

Conclusion

157. The applicant has put forward a very wide number of matters upon which he has based claims that he has suffered a miscarriage of justice. However, his conviction was over 30 years ago. Unsurprisingly, much of the information about his case has long since been lost or destroyed. The Commission does have some concerns about some of the matters the applicant has raised, including the account of David Livingstone, the conduct of the identification parade and the possible involvement of Alex Hardie, but on the material that is available, the Commission has been unable to identify a basis for the belief that, in law, a miscarriage of justice may have occurred on those grounds or on the various other grounds addressed above.

REASONS FOR REFERRAL

Misdirection by the trial judge

158. In his application to the Commission the applicant submitted that the trial judge had misdirected the jury in his case. Reference was made to the case of Gilmour v HMA 2007

SCCR 417 in which, it was submitted, a direction identical to that given in the applicant's case was said to have been a misdirection. It was submitted that, applying to the judge's charge in the applicant's case the test that had been applied in Gilmour, a miscarriage of justice had occurred.

159. In the Commission's initial statement of reasons consideration was given to the applicant's submissions and it was accepted that there had indeed been a misdirection. At that stage the Commission was not minded to conclude that this misdirection had led to a miscarriage of justice but the applicant and the Innocence Project were afforded the opportunity to make further submissions. In light of the further submissions received on this point, and having reconsidered the matter for itself, the Commission has come to the view that the misdirection in question may have caused a miscarriage of justice to occur.The reasons for this are set out below.

Misdirection on standard of proof

160. The direction principally complained of in the applicant's submission relates to the judge's explanation of the standard of proof. What the judge said to the jury in that regard was as follows (at page 4A-D of the transcript of the charge, a copy of which is included in the appendix to this statement of reasons; Commission's emphasis in bold): ' ...the standard of proof as you have been told is beyond reasonable doubt. That is to say you cannot convict the Accused of either of these charges unless you are satisfied beyond reasonable doubt of his guilt.Now, reasonable doubt just means what is says. It is a real doubt, not a remotepossibility, and I usually put it this way -1 don Y know whether it helps or not - that fora verdict of guilty you need not be absolutely certain, but you must be reasonablycertain because if you are not reasonably certain then you will have a reasonabledoubt.If I later use such phrases in my address to you such as "Are you satisfied", or "Has theCrown proved? " or "Has the Crown satisfied you? ", or phrases of that nature, youmust take them all as qualified by the words "beyond reasonable doubt".'Case law

161. The Commission notes that the foregoing direction is indeed in near identical terms to the directions given by the trial judge in Gilmour (as quoted at paragraph 36 of the appeal court's opinion in that case). This is perhaps not surprising, as the judge at trial in Gilmour was Lord Dunpark, the same judge who presided over the applicant's case, and the conviction in Gilmour was dated 7 June 1982, just over two months after the applicant's conviction.

162. The appeal court in Gilmour (at paragraph 122) acknowledged that the direction that reasonable certainty was sufficient for a conviction was inaccurate, and the advocate depute in Gilmour conceded that it was a misdirection, for the reasons given in the case of A v HMA 2003 SCCR 154. The question the court in Gilmour then had to address was whether it had caused a miscarriage of justice. The court noted that the trial judge had, as in the case of Stillie v HMA 1990 SCCR 719 and A v HMA, repeatedly emphasised to the jury that they must acquit if there was any reasonable doubt in their minds, and the court also noted that the judge specifically mentioned the requirement of proof beyond reasonable doubt in the context of evidence upon which the Crown case depended. In view of these directions, and since the charge was accepted to be scrupulously fair to the defence, the court saw no reason to think

that the misdirection was of such a serious character as to have caused a miscarriage of justice.

163. In Stillie, referred to in Gilmour, the trial judge was again Lord Dunpark and the appeal court again had to consider a direction to the jury that 'reasonable certainty' was sufficient to meet the standard of proof. In Stillie (at page 732) it was recognised that this direction was:'misleading and ill-advised. It is one thing to say what the proper test does not involve,such as that a mathematical certainty is not required. But it is quite another to invert thisapproach and to attempt to substitute another test for that which is required.'

164. It was not disputed in Stillie that it was a misdirection. However, in dismissing the argument by the appellants that the misdirection had undermined the whole charge because every subsequent reference to proof beyond reasonable doubt was to be understood in light of this explanation about its meaning, the court took the view that this was overstating the point. The court doubted that the jury would have attached that much significance to what were only two brief sentences in that case; the court further stated that:'... it has often been said that the phrase 'reasonable doubt' means what is says, and itis certainly true that the words are relatively easy to understand. So long as the judgetells the jury that guilt has to be established beyond reasonable doubt he has said theminimum of what is required of him on this point, and that in itself is sufficient to showthat the words themselves do not require further elaboration.'

165. The court pointed out that in at least a dozen passages in the charge the trial judge had used the 'traditional formula' (i.e. 'beyond reasonable doubt'), and that the emphasis in the charge had been on that essential point. The court concluded in these circumstances that the misdirection was not of such a serious character as to amount to a miscarriage of justice when the charge was read, as it ought to be, as a whole.

166. In Stillie the trial judge's misdirection was compounded by a further misdirection on the standard of proof, when he directed the jury that they could find the crime proved only if the Crown evidence, taken as a whole, rendered it 'more likely than not' that a crucial Crown witness's evidence was reliable. The argument was also made by the appellants in that case that the judge's charge had lacked balance, as the judge had made reference to the appellants' special defences of alibi and incrimination only at the very end of his charge, after being reminded of the need to do so by his clerk, and without directing the jury in terms that there was no onus on the appellants to establish any of the special defences. The appeal court nevertheless maintained that, when read as a whole, including the repeated references to the requirement of proof beyond reasonable doubt, no miscarriage had occurred.

167. In A v HMA, also referred to in Gilmour, the appeal court had to consider a trial judge's direction to the jury that they required to be 'reasonably sure' of the accused's guilt in order to convict, a direction which the judge repeated towards the end of the charge.Again, the court was satisfied that the direction was inaccurate (paragraph 10), but emphasised the need for the charge to be read as a whole, and stated, following the approach in Stillie, 'In this case we are satisfied that, in his repeated references to the necessity of their being satisfied beyond reasonable doubt before they could convict, the trial judge adequately directed the jury as to the standard they had to apply. In the face of these clear directions the inaccuracy to which we have referred was not one that, in our view, could have resulted in a miscarriage of justice' (paragraph 11).

Consideration of the judge's directions in the applicant's case

168. The Commission notes that in the charge to the jury in the applicant's case the judge made reference to the need to be 'reasonably certain' at an early stage in the charge, in the passage at page 4A-D, quoted above. Thereafter, on at least ten occasions (at pages 6C, 7A,7D-E, 9E, 10A, 1 OF-11 A, 19E, 25C, 26B-C and 26D) the trial judge made reference to proof beyond reasonable doubt, or to the obligation to acquit if the jury had a reasonable doubt.

169. Stillie and the cases following it might suggest that the judge's repeated reference throughout his charge to 'the traditional formula' was adequate in the applicant's case to ensure the misdirection as to 'reasonable certainty' did not give rise to a miscarriage of justice. However, a number of arguments were submitted to the Commission as to why the misdirection ought not to be dismissed so readily in the applicant's case. The Commission considers these arguments below.

Duty to follow judge's directions

170. The Commission has some sympathy with an argument advanced by the InnocenceProject that, where a trial judge takes the time to explain a legal term to the jury, the jury must apply the definition given by the judge in place of its own understanding of that term.As the court stated in Clow v HMA 2007 SCCR 201 at paragraph 8: 'The whole system of trial by jury proceeds and can only proceed upon the hypothesis that the jury, in ultimately making decisions upon guilt and innocence, will loyally follow the directions they have been given.' In the Commission's view there is some tension between that general principle on the one hand and, on the other, the suggestion in Stillie that the judge's misdirection as to the meaning of 'beyond reasonable doubt' would, in effect, have been disregarded by the jury. The court's approach appears to be that the 'traditional formula' is of itself sufficiently easy for a jury to understand, and that repetition of that formula throughout the charge is sufficient to prevent an erroneous definition of it from causing a miscarriage of justice to occur. However, in the Commission's view there is perhaps greater force than was acknowledged in Stillie for the argument that, where the jury must be taken to follow loyally the directions they are given, the erroneous definition must have coloured the jury's understanding and application of the relevant standard.

Judge's direction that 'a reasonably clear picture' is sufficient

171. The Commission's concern about the misdirection in the applicant's case is magnified by a later statement in the trial judge's charge. As was pointed out to the Commission by the Innocence Project, the judge, when describing how the jury should approach the Crown's case, stated the following (at page 22A-C, Commission's emphasis added):'You see, ladies and gentlemen, it is often put different ways really, but it is rather like ajigsaw, different witnesses providing the different pieces because of what they saw atdifferent moments from different positions, and it is for you to decide which pieces fit andwhich do not, and when you have decided which pieces fit together you then considerwhether the puzzle is sufficiently complete to give you a reasonably clear picture of thisevent and of the Accused's involvement in it.'

172. In the Commission's view, on an ordinary reading of the judge's words, the jury would have understood from the foregoing direction that a 'reasonably clear picture' of the

applicant's involvement in the robbery was sufficient to convict him. The Commission considers that, whether or not it was the judge's intention, the jury may well have taken this as a reinforcement of the earlier direction that they need be only 'reasonably certain' of the applicant's guilt in order to return a guilty verdict. The Commission considers this to be a further misdirection on standard of proof, which, notwithstanding the approach taken in A v HMA, makes the initial misdirection even harder to dismiss, and which gives rise to genuine concern on the Commission's part that the standard the jury may have applied in reaching its verdict was less stringent than it ought to have been.

Directions on identification evidence

173. The Innocence Project was critical of the judge's treatment of the identification evidence and referred to the English practice of issuing Turnbull warnings, which they submitted ought to have at least persuasive authority. In the Commission's view, however, the Scottish courts have developed their own approach to identification evidence and it is to the practice in Scotland that reference must be made in assessing the directions on identification in the applicant's case. The starting point is the practice note on identification evidence issued by Lord Justice-General Emslie on 18 February 1977 (set out in the Bryden Report, 'Identification Procedures under Scottish Criminal Law, Cmnd 7096/1978 at appendix H), which was in place at the time of the applicant's trial and which contained the following passage (quoted in Webb v HMA 1996 SCCR 530 at page 534):'A typical example of the problem is found in the case in which the only evidenceinculpating the accused in the commission of a proved crime is evidence of visualidentification by witnesses in circumstances in which their opportunity for accurate andreliable observation of the perpetrator has been limited in time or otherwise or merelyfleeting, and where the accused was not previously known to them, or where memory mayhave been impaired for one reason or another. In such a case, and indeed in many casesin which acceptance by a jury of evidence of visual identification is essential to aconviction, the risk of conviction on mistaken identification by honest witnesses cannotwholly be excluded. To reduce this risk to a minimum in cases of this kind and also incases in which the trial judge himself is of opinion that some critical evidence may be ofdoubtful quality -for whatever reason - he should continue to follow the sound practice(i) of reminding the jury of the vital importance of approaching the assessment of theweight which ought to be given to the evidence in question with particular care; and(ii) of assisting the jury by indicating or suggesting for their consideration the testswhich in the particular circumstances of the case they could usefully apply to thatevidence to measure its quality and reliability and thus reach a sound conclusion onwhether to accept, reject or discard it.'

174. It is clear from the case law that a failure to follow the foregoing guidance will not necessarily amount to a miscarriage of justice (see Renton and Brown 'Criminal Procedure'6th edition at paragraph 18-79.2 and authorities cited there). It is generally a matter of discretion for the judge whether to give such directions, the issue whether such directions are required being dependent on the facts and circumstances of each case (see e.g. Beaton v HMA 2004 SCCR 467 at paragraph 26; Kearns v HMA 1999 SCCR 141 at page 143).Although previous authority suggested that a direction to the jury in relation to identification evidence that they should be careful as to what conclusion they reach is the 'bare minimum' required (McAvoy v HMA 1991 SCCR 123 at page 131) and a complete absence of directions on identification has been held in certain cases to amount to a miscarriage of justice (e.g. Webb, Beaton), there is also authority that, where defence counsel addressed the issue of

identification in his speech, a simple direction to the jury to bear in mind the matters raised by counsel, without any specific directions on identification, was enough (Ferguson v HMA 2000 SCCR 954).

175. In the applicant's case, the trial judge highlighted in his charge to the jury (at page 5E) that 'identification evidence is as you will no doubt realise notoriously difficult, easy to make a mistake if you only get a fleeting glimpse of someone. So, you have to examine all the identification evidence in this case with care...' He later reiterated (at page 9E) that the jury 'must examine all the evidence with great care, and in particular as I have already told you the identification evidence.' He directed the jury to consider the whole evidence and 'all the points' defence counsel made in his speech (at page 24D). The judge also narrated the identification evidence (at page 14A et seq), during which he highlighted evidence that he suggested was not satisfactory (the complainer Horn's identification evidence) and evidence that 'could hardly be said to be positive' (Anne Callan's evidence); and he suggested that the evidence of Kenneth Ashford and Nigel Muckle was required for there to be satisfactory evidence that the applicant was one of the assailants (technically, since there is sufficient evidence where one positive identification is corroborated by an identification by resemblance (see e.g. Ralston v HMA 1987 SCCR 467), the jury could have convicted the applicant if satisfied by the evidence of only one of those two witnesses, assuming they also accepted e.g. the resemblance identification by Anne Callan).

176. In light of the case law referred to above, it seems that the judge in the applicant's case did more than the 'bare minimum' and that his directions on identification evidence cannot themselves be said to give rise to a miscarriage of justice. Having said that, the Commission does not see much evidence in the charge of the judge assisting the jury by suggesting the tests which they could apply in the particular circumstances of the case, as suggested in point (ii) of the 1977 practice note; on the contrary, the judge's approach to the Crown evidence and in particular to the defence submissions about that evidence are the cause of some concern to the Commission, as set out below. Nowadays, one would certainly expect that in a case of this kind the judge would give more detailed directions on this issue, along the lines of those contained in chapter 16.2 of the Jury Manual (available on the Judicial Studies website); and see for example Gage v HMA, op cit, at paragraph 29: 'The invariable practice in our courts is that the trial judge gives the jury a specific and thorough direction that warns them that in certain circumstances such evidence may be unreliable and refers by way of example to specific considerations that might be thought to affect the reliability of an identification made by an eyewitness.'

Judge's approach to Crown and defence evidence

177. The Commission is of the view that there is some substance in certain criticisms of the judge's treatment of the Crown and defence cases in passages of his charge.

178. The Commission notes that, where a trial judge decides to comment on or review the evidence during his charge, as well as the requirement that the judge take 'utmost care to avoid trespassing on the jury's province as masters of the facts' (Simpson v HMA 1952 JC1) the judge must comment accurately and in a balanced way, including in his tone of voice(Renton & Brown at para 18-79.0.4 and cases cited there). The charge must be looked at objectively (Clark v HMA 2000 SCCR 767). Directions to the effect that the evidence is a matter for the jury will sometimes be sufficient to 'rescue' a charge in which the judge's

treatment of the Crown and defence cases is criticised but that will not always be the case (e.g. Harkness v HMA 2006 SCCR 342, cf e.g. Brady v HMA 1986 SCCR 191).

179. At page 13 of the charge in the applicant's case the judge commenced his consideration of the crucial evidence in the case, i.e. the identification evidence, by informing the jury that it was not his intention to influence the jury in any way as to the reliability of particular witnesses or as to the inferences the jury should draw, that what he said was merely to assist the jury and that they could add whatever weight they considered appropriate to what he said and they could disregard any comment altogether if it did not fit with their recollection. The judge then summarised the Crown evidence.

180. In relation to the witness Steven Clark, who chased the getaway vehicle to Newbridge roundabout before losing sight of it, the trial judge stated the following (page 17B-D):'Now, he identified, as Mr Taylor [i.e. defence counsel] said, the wrong man on theidentification parade, but you may think that the important part of his evidence is that hesaid that the man he chased down the path got into this car because that is why hepursued the car, and that evidence if you accept it you see may seem to you to link up thetwo men in the car with the two men who attacked the postmen.'

181. In the Commission's view the description of the stand-in Mr Clark picked out at the identification parade as the 'wrong' man might simply reflect the words defence counsel used, but it is arguably a somewhat unfortunate choice of words, as it might be taken to imply that the applicant was the 'right' man at the identification parade. More significantly, however, the judge's direction does seem to minimise the significance of the defence submission, i.e. that Mr Clark picked out a stand-in at the parade as the person he saw driving off in the getaway vehicle, in favour of the part of Mr Clark's evidence which assisted the Crown case: the only positive identifications of the applicant were as the driver of the car, so the link between the men in the car and the attackers was crucial to the Crown case.

182. The Commission considers that there are also examples in the charge of the judge appearing to question the importance of, or offer up possible explanations for, inconsistencies referred to by the defence to cast doubt on the Crown evidence. For example, the judge stated the following (page 19F-20C):

'Mr Taylor you see stressed various discrepancies quite rightly in the evidence of theCrown witnesses, and it is for you to consider whether there is any conflict in theevidence given by the Crown witnesses of sufficient materiality to affect the reliability oftheir crucial evidence. Could they, for example, have mistaken anorak hoods drawn upover the head as balaclava helmets? I don't know, that is a question you may wish to askyourselves. It may not seem important to you. The important thing may be that the headwas covered with something. That is a matter for you.'

183. Another example is at page 21D-22F (as quoted below). Having stated at page 20C that defence counsel had 'stressed the difference between the evidence of Mr Muckle and Ashford about the speed of the car', the judge referred to his notes of the evidence about this issue and then stated:'So, he [i.e. Mr Ashford] didn 't see the men get into the car. The car was going awayfrom Clark and Muckle and coming towards Ashford, so people in different positions atdifferent times may have obtained a different impression and it is a matter for you todecide whether you think that the fact that Ashford was not conscious of the car

travelling at any great speed when he first saw it, and later when he watched it go to theroundabout and turn left, remember [NB the Commission considers that 'remember' hereis a typographical error; the context suggests that the correct word is 'render'] that hispositive identification of the Accused is unreliable. That is a typical jury question, it is amatter for you.'

184. The Commission accepts that in the two foregoing examples the judge stated that it was a matter for the jury to resolve the issues; the Commission nevertheless has some concern at the judge's willingness, particularly in the first example, to advance alternative explanations of the defence submissions for the jury's consideration and to minimise aspects of the defence submissions. The speed of the car was of course of importance not only because Mr Ashford's evidence was inconsistent with what other witnesses said about this, but because the faster the car was travelling, the less chance Mr Ashford would have had to view the driver as he passed. Likewise the issue of whether the perpetrators had balaclavas or simply jacket hoods up was of greater importance than the judge implied since, based on the handwritten notes of evidence, Mr Muckle's account was that when the driver got into the car he pulled down his hood and was not wearing a balaclava, thus giving Mr Muckle a view of the driver's full face; whereas various witnesses including the two post men, Mr and Mrs Callan and Steven Clark described balaclavas and the evidence of Thomas Callan was that when the getaway car was driven off both men inside it were still wearing theirbalaclavas.

185. The Innocence Project, as well as highlighting the foregoing concerns, were also critical of the trial judge's direction at page ISA that the jury should 'consider Constable Muckle's evidence with great care. He was an off-duty Policeman with four years' service.'It was submitted that, rather than sounding a note of caution about the possible fallibility of Mr Muckle's identification evidence, the direction to consider his evidence with 'great care' was in fact intended to, and had the effect of, asserting the trustworthiness of Mr Muckle's identification, particularly in the context of the statement immediately following that the witness was an off duty officer with four years' service. The applicant made a similar submission.

186. In considering the foregoing submission, the Commission notes that on two earlier occasions the judge warned the jury to take 'care' or 'great care' when considering the identification evidence (at pages 5E and 9E), the former in the context of a warning that identification evidence is 'notoriously difficult' and that it is 'easy to make a mistake if you only get a fleeting glimpse of someone' (see above). Seen in that context, it may be that the judge's approach to Mr Muckle's evidence was intended as a cautionary one. However, the Commission can also see merit in the submission that, on the face of it at least, the direction, with its reference to the witness as a police officer with four years' service, may have been interpreted by the jury as an endorsement of Mr Muckle's evidence.

187. The Innocence Project were also critical of the judge's treatment of the defence evidence, pointing out that much greater time was devoted to setting out the Crown evidence, that the judge made an error in asserting that only the applicant's partner had seen the applicant between 1pm and 6pm (at page 23E; the applicant also submitted that this was a misdirection) and that, in concluding the consideration of the defence case, the

judge made a 'loaded' statement (at page 24B-C) by repeating the advocate depute's position that either the identification evidence was mistaken or the applicant and his partner were lying.

188. Of these criticisms, the Commission considers the judge's approach to the evidence about the time the applicant was seen to be the only one of some substance. The judge stated that the crucial period for the jury's consideration was between 1pm and 6pm (at page 22D). He suggested that the jury might think the evidence of the applicant's whereabouts after 6pm was 'accurate enough' (at page 23D-E). This relates to the evidence of a witness, Michelle White, and another witness, Mr Sharp, that Ms White worked on the Saturday afternoon in question until 6pm and then got a bus at 6.05pm from Eglinton Toll inGlasgow, and saw the applicant on that bus. The judge suggested that there did not 'seem to be much doubt' about that evidence (at page 23A-B). Those witnesses were called by the Crown. However, the judge also suggested that it was only the applicant and his partner who could speak to the applicant's whereabouts between 1pm and 6pm, that he did not think there was any evidence that anyone else saw the applicant prior to 6pm. In fact there was some evidence of the applicant's presence on a bus in St Enoch Square, Glasgow, possibly as early as 5.15pm or 5.30pm onwards, from the witnesses Marion Geary and Ann Marson, both of whom were called by the defence. Indeed, some reference was made to that evidence at page 23C of the judge's charge, immediately prior to his statement that only the applicant's partner could say she saw the applicant before 6pm that day. The handwritten notes of evidence of Ms Geary records her stating that she thought she caught the bus at St Enoch at 5.30pm; and Ms Marson's evidence that it was between 5.30pm and 6pm. It is not clear, therefore, why the judge should suggest there were no sightings of the applicant, except by the applicant's partner, prior to 6pm. The Commission notes from the judge's charge that the advocate depute and defence counsel explored the timing issue in their speeches. The Commission is also satisfied that a sighting of the applicant in the centre of Glasgow at 5.15pm was not early enough to rule out his involvement in the robbery in Livingston at around 3.45pm that day (see paragraph 141 above). In that sense, the direction complained of did not fatally undermine the defence case; nevertheless, the Commission does consider it an inaccurate description of the defence evidence on an issue of some importance.

189. In light of the foregoing, the Commission considers that there is some merit in the suggestion that the charge lacks the requisite accuracy and complete neutrality in addressing the Crown and defence evidence. The examples of this may not be sufficient, in and of themselves, to justify the conclusion that a miscarriage of justice may have occurred, particularly where the jury were reminded a number of times that it was their recollection and assessment of the evidence that counted. However, disputed directions must be considered in the context of the charge as a whole (e.g. McGirr v HMA 2007 SCCR 80); where a number of directions have been the subject of criticism, the court has considered them together in concluding that a miscarriage of justice has occurred (e.g. MacDonald v HMA 1995 SCCR 663; Dyer v HMA 2009 SCCR 194). In the Commission's view, it is when the foregoing deficiencies in the charge in the applicant's case are taken cumulatively, and alongside the clear, reinforced misdirection suggesting 'reasonable certainty' is equivalent to belief beyond reasonable doubt, that the Commission has become persuaded that the overall effect has been that the jury was materially misdirected.

Conclusion

190. It is clear that, when assessing a charge to the jury, it is the present-day standards that must be applied (Boncza-Tomaszewski v HMA 2000 SCCR 657). As stated at paragraph 70 above, in Coubrough's Executrix v HMA, op cit, the High Court quoted with approval passages from the English Court of Appeal decision in R v Hanratty on the effect the passage of time has on appeals. The court held that, although the standards of today must be applied, regard must be had to the practices and procedures current at the time and that the question whether a miscarriage of justice may have occurred must be considered 'in the round', and 'taking into account all the relevant circumstances' (see paragraphs 35 to 36 of the court's opinion). The Commission has therefore taken into account the suggestion in Gilmour that reference to 'reasonable certainty' in the context of the standard of proof was not uncommon around the time of the applicant's trial. However, the Commission understands that, whilst the precise nature of the directions on standard of proof have always been regarded as a matter for the discretion of the trial judge, the misdirection in this case is not one which had been expressly approved of at the time of the applicant's trial (cf the misdirection complained of in Coubrough 's Executrix}; on the contrary, the court has long cautioned against any departure from the traditional formula and 'experiments in reformulation' (see Mackenzie v HMA 1959 JC 32 at page 37).

191. Therefore, if indeed it was not uncommon at the time for judges to misdirect the jury in the way which occurred in the applicant's case (it certainly seems to have been the practice of the trial judge in the applicant's case, but from other historical cases theCommission has considered, the Commission has seen little evidence that the practice was widespread amongst the judiciary), the Commission does not regard it as appropriate to place any significant weight upon that fact: the fact that at the time of the applicant's trial such a misdirection may not have been uncommon can hardly be said of itself to mitigate any prejudice to the applicant that the inaccurate direction on such an important matter as the standard of proof may have caused. The Commission also notes that the requirement for the judge to treat his summaries of the Crown and defence cases in a sensitive, accurate and balanced way would in no way be alien to a judge in the 1980s.

192. It is of course no longer possible to obtain the trial judge's views on the various aspects of his charge at which criticism has been aimed. Likewise it is not possible to listen to the charge, or to obtain the speeches of the advocate depute and defence counsel (the Commission having been informed that the shorthand notes of the trial are no longer available). Although such enquiries might have shed further light upon some of the comments in the judge's charge, they would have done little to advance consideration of the central misdirection on standard of proof, and the Commission considers the available information sufficient to reach its conclusions here.

193. It appears from recent authorities (see e.g. DS v HMA 2012 SCCR 319) that the appropriate test to apply when the materiality of a misdirection is in contemplation is theMclnnes test. It is not in doubt that the jury has been misdirected in the applicant's case. It is therefore a matter of fact and degree whether in the particular circumstances of the applicant's case the Mclnnes test has been met. In that regard the Commission notes again that the verdicts of the jury, which were by majority only, were based on the acceptance of two fleeting, stranger identifications made by eye witnesses who saw the getaway driver through the glass of the vehicle (in one case while the vehicle was in motion). In addition, those identifications were made against the background certainly of some evidence that the

applicant resembled one of the perpetrators but also of various witnesses who failed to pick out the applicant at parade (indeed, as set out at paragraph 59 above, three witnesses picked out stand-ins at the parade and three more suggested stand-ins resembled the perpetrator they saw, although not all these witnesses gave evidence). The Commission also notes that the initial misdirection on standard of proof was reinforced by what the Commission considers to be a further misdirection suggesting that the jury could convict if they had a 'reasonably clear picture' of what was the crucial matter for the jury to resolve i.e. the applicant's involvement in the offence, and that those misdirections were accompanied by directions on the need for caution in assessing the identification evidence which did not include any guidance for the jury on how they should assess the quality and reliability of the identifications, and by a summary of the Crown and defence evidence which in the Commission's view lacked the necessary accuracy and neutrality. In light of all these factors, and taking the charge to the jury as a whole and in the whole circumstances of the applicant's case, the Commission considers there to be a real possibility that the jury's verdict would have been different, had they not been misdirected by the trial judge.

194. For all the foregoing reasons, the Commission considers there may have been a miscarriage of justice in the applicant's case on the basis that the trial judge misdirected the jury.

INTERESTS OF JUSTICE

195. In terms of section 194C of the 1995 Act the Commission's test is two-fold and, as such, the Commission must decline to make a reference to the High Court, even where there may have been a miscarriage of justice, if the Commission believes that a reference would not be in the interests of justice (M v SCCRC 2006 SCCR 433 at paragraph 54). In Cochrane v HMA 2006 SCCR 213 the High Court stated that the clear intention of Parliament was that, in relation to redress by way of the Commission's cumulative test, a wider issue than the possibility of a miscarriage of justice should be addressed (at paragraph 9). In doing so, the Commission has a broad discretion which it may exercise after it has had regard to all of the factors which the Commission considers are relevant to the justice of the situation (Raza v SCCRC 2007 SCCR 403 at paragraph 7).

196. One of the issues which the Commission is obliged to have regard to under the interests of justice test is the issue of 'finality and certainty' in court proceedings (section 194C(2) of the 1995 Act). Express wording to this effect was introduced into the Commission's founding legislation by the Scottish Parliament through the enactment of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 i.e. the 'emergency legislation' passed in the wake of the Supreme Court's decision in Cadder v HMA 42010SLT1125.

197. In the instant case, the fact that the applicant's conviction is now over 30 years old is clearly a factor which must be taken into account when deciding where the interests of justice lie.

198. The Commission has already addressed the impact of the passage of time on the ability to consider whether a miscarriage of justice has occurred, and has concluded that, in respect of the misdirection ground, there is sufficient in the available information for sound conclusions to be reached on this matter, notwithstanding, for example, the loss of opportunity to obtain the trial judge's views. The Commission does not consider the failure of the applicant to raise misdirection grounds at his original appeal ought to be held against the applicant, particularly since he was left to pursue the appeal without legal assistance.

199. The Commission also considers that, in assessing the length of time that has elapsed and whether finality should operate to prevent the referral of this case, some attention must be given to the applicant's actions during that time. The Commission notes from an up-todate schedule of the applicant's previous convictions that, although the applicant was a frequent offender prior to his conviction for the robbery, in the thirty years following that conviction he has barely troubled the courts at all: all that appears on his record for the period since then is a summary level conviction for reset in 1996 and one for breach of the peace in 2006 (which, the Commission understands, relates to a protest outside the Commission's offices), both dealt with by way of modest fines; the robbery conviction is by far the most serious offence on his record.

200. More importantly, to suggest that the applicant has refused to acquiesce in his conviction would be a serious understatement. He has protested his innocence consistently since his conviction. As well as pursuing an appeal following his conviction (despite the absence of legal assistance), he complained to the police about the conduct of the identification parade post-trial. He also made complaints about the conduct of his legal representatives. He applied a number of times to the office of the Secretary of State for Scotland to have his case referred to the High Court. He made a further attempt to open up an avenue of appeal by applying direct to the court in 2006, notwithstanding his previous failed appeal. He attempted to petition the nobile officium. He has made various requests for information from the Crown, the police and the Commission and he has engaged the assistance of MSPs and of the Innocence Project. He has applied to the Commission on three occasions. He has also sought to publicise his case in a number of ways: he has attended various events on miscarriages of justice; he has set up web pages and he has organised various public protests; and he has garnered media interest on various aspects of his case over the years. It is also of note that his actions have not been restricted to questioning the fairness of his trial: he has taken various steps to uncover fresh evidence to support his claim that he has suffered a miscarriage of justice.

201. The Commission is of course well aware that protestations of innocence, even over a long period, are no guarantee of factual innocence. However, the breadth and persistence of the applicant's conduct in pursuing his claims of miscarriage of justice is striking and is unlike any other applicant the Commission has encountered. It is therefore a significant factor in the Commission's decision that, notwithstanding the passage of time, it is in the interests of justice for the applicant's case to be considered again.

202. In light of the foregoing, the Commission has reached the view that it is in the interests of justice that the applicant's case be referred to the High Court.

CONCLUSION

203. Based on the content of this statement of reasons, the Commission believes that there may have been a miscarriage of justice in the applicant's case. The Commission also believes that it is in the interests of justice that the case be referred to the High Court for determination. The Commission accordingly does so.

Scottish Criminal Cases Review CommissionAugust 201269SCOTTISH CRIMINAL CASES REVIEW COMMISSION

CASE OF MR WILLIAM MCKENNA BECK

SCHEDULE OF APPENDICES

REFERRED TO IN STATEMENT OF REASONS

1. The j udge' s charge to the j ury2. The trial solicitor's handwritten notes of the proceedings at trial3. Statement of Kenneth Ashford dated 9 December 2011 (personal details redacted)