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Cite as: [2008] ScotHC HCJAC_28

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IN APPEAL BY

 

LUKE MUIR MITCHELL

against

 

HER MAJESTY'S ADVOCATE

 

 

SUMMARY

 

16th May 2008

 

Today at the Criminal Appeal Court in Edinburgh the appeal by Luke Muir Mitchell against his conviction for the murder of Jodi Jones was refused. The Lord Justice General, Lord Hamilton, sitting with Lord Osborne and Lord Kingarth delivered the following summary of their decision in Court.

 

"On 30 June 2003 Jodi Jones, then aged 14, was murdered in woodland near Dalkeith. After trial in the High Court at Edinburgh the appellant, Luke Muir Mitchell, was convicted of that murder. At the time of his trial the appellant was 16 years of age; at the time of the murder he was just under 15.

 

The appellant sought leave to appeal against conviction on various grounds. He was granted leave on six of them; in the course of the hearing of his appeal he was allowed to introduce a further ground. The Opinion of the Court upon his appeal - to which each of its members has contributed substantially - is now available. It is of substantial length. It should be referred to for its terms. The summary which follows is not intended to describe the whole reasons which have led to the court's conclusions.

 

Under ground of appeal 1 a challenge was mounted to the decision made by the trial judge in advance of the trial to reject an application made on behalf of the appellant that his trial be heard in a court outwith the Edinburgh area. A number of circumstances (mainly media attention) were relied on in support of the proposition that, while the appellant could, notwithstanding that attention, obtain a fair trial, such a trial could not be obtained in a place so near as Edinburgh to the scene of the critical events. It was acknowledged, however, that a decision as to whether or not to order that the trial be heard elsewhere was one primarily for the discretion of the trial judge in the particular circumstances of the case and that no miscarriage of justice could in that respect be said to have occurred unless this court was satisfied that the decision made was one which no judge acting reasonably could have reached. For the reasons given in detail in the Opinion of the Court (which include the steps taken by the judge in the course of the trial to avoid the jury being prejudiced against the appellant as a result of media attention) we are not satisfied that there was any miscarriage of justice in that regard. This ground of appeal is accordingly rejected.

 

The appellant next contended that there was led by the Crown before the trial court insufficient evidence in law upon which he could be convicted. Associated with that ground was the additional ground, namely that, having regard to the totality of the evidence, the verdict returned by the jury was a verdict which no reasonable jury properly directed could have returned.

 

The case against the appellant was wholly circumstantial. The principles to be applied in such a case are clear: individual items of evidence need not be incriminatory in themselves; they should be looked at not in isolation, but in the context of the whole evidence; if capable of more than one interpretation, it is for the jury to decide what interpretation to adopt; a jury is entitled to reject evidence inconsistent with guilt precisely because it is inconsistent with incriminatory evidence which it accepts; guilt can be established on the basis of circumstantial evidence coming from at least two independent sources; and for there to be a case to answer the whole circumstances taken together must be capable of supporting an inference of guilt. For the purpose of testing sufficiency, the evidence relied on by the Crown must be taken at its highest, that is, it is to be treated for this purpose as credible and reliable and is to be interpreted in the way most favourable to the Crown.

 

Applying these principles the court is satisfied that there was sufficient evidence in law upon which a verdict of guilty could be returned. An important element in the Crown case was the evidence of Mrs Andrina Bryson who testified to seeing a male and a female at the Easthouses end of the Roan's Dyke Path at about 1650-55 on 30 June 2003. Two other female witnesses identified the appellant as the young man they had seen at the Newbattle end of the Path about 50 minutes later. Taken at its highest Mrs Bryson's evidence amounted to an identification of the appellant as that male and of Jodi Jones as possibly that female. Taken along with other evidence (as we refer to later) it would have been open to the jury to conclude that it was indeed her. If that evidence was accepted, it not only destroyed the appellant's alibi (that he was in his home during that period) but also put him in the company of Jodi Jones at a point of time which on other evidence may well have been shortly before she met her death. Further, it rendered the place of her death on the general route which the appellant would have had to take to proceed from one locality where he was sighted to the other. The absence of any signs of struggle on the path side of the wall which ran along the northern side of the Roan's Dyke Path suggests that, if Jodi Jones went through the break in the wall close to where she met her death with someone, she did so with someone she knew - such as the appellant, whom she had gone expressly to meet that evening. The manner of her death was also significant, as was the unexplained disappearance of a knife which the appellant was in the habit of carrying and of the jacket which he may have been wearing on that day. The appellant's conduct later that evening was also significant - not least in the apparent ease with which he was able to identify the location of the body in relatively dense woodland on the far side of the wall. Before us the Crown also relied on a number of other circumstances which were also capable of playing a part in building up the case against the appellant. It is unnecessary to list these in this summary. When, however, they are taken into account with the circumstances to which we have referred, there was sufficient evidence in law, in our opinion, to allow the jury, if they accepted it, to draw the inference of guilt.

 

As we have said, the appellant also contended that, even if the evidence against him was sufficient in law, the verdict to which the jury came was one which no reasonable jury, properly directed, could have returned. Discussion of this ground of appeal involves an evaluation of the quality of some of the evidence led. Of particular importance in this exercise is evaluation of the identification evidence given by Mrs Bryson. The quality of that evidence was criticised as to its reliability by counsel for the appellant. In particular, the method by which she came to make her identification - by picking out a photograph of the appellant from a range of photographs of young males - was attacked both as a matter of principle and as to the particular photographs used. The fact that the police had, by failing to hold an identification parade, not followed the relevant guidelines was founded on as a significant irregularity. Having considered Mr Bryson's identification evidence in detail, we have come to the view that, while its reliability was open to challenge, there were elements in it which could reasonably provide the basis for a valid identification of the appellant as the male she had seen and at least a possible identification of Jodi Jones as the female. Moreover, Mrs Bryson's evidence on this matter did not stand alone. It fitted with evidence that Jodi had left home to meet the appellant with a view to their spending time together in the Easthouses area. The place where Mrs Bryson saw the male and the female was a regular rendezvous point for the appellant and Jodi and one where they were likely to meet that evening if it was their intention to spend time together as Jodi anticipated. The timing of Mrs Bryson's sightings also fitted with it being Jodi and the appellant whom she saw. If the jury accepted these identifications - as, having regard to the whole evidence bearing on them, they might reasonably do - there was ample evidence otherwise to allow them reasonably to conclude that Jodi's killer was the appellant. We refer, in particular, to the evidential material discussed in the context of the argument on sufficiency of evidence. The jury were moreover given by the trial judge clear and comprehensive directions about how they should approach evidence of visual identification - with particular directions being given in relation to Mrs Bryson's evidence. In all these circumstances the ground of appeal based on the alleged unreasonableness of the verdict must be rejected.

 

The appellant also challenged the identification evidence (of Mrs Bryson and of others) as "unfair". But that evidence having been properly admitted (as to which there was no challenge in the appeal), any question of unfairness can go only to the reliability or weight of the evidence in question. That was a matter for the jury. If, as we have already held, the verdict was one to which the jury, properly directed, could have come, this ground of appeal must also be rejected.

 

A ground of appeal was also advanced challenging the decision of the trial judge to allow evidence to be led about certain bottles of urine. But it was acknowledged that this ground could not on its own justify the conclusion that there had been a miscarriage of justice. Moreover, the trial judge gave clear directions to the jury that they should not judge the appellant on the basis of his personal conduct or habits or lifestyle, except to the extent that these might be relevant to the issues of fact which they had to decide. We have come to the view that, in the particular circumstances before him, the trial judge did not err in allowing the evidence in question to be led and that there is no merit in this ground of appeal.

 

The appellant was on 14 August 2003 interviewed under caution by police officers. In the course of the trial the Crown sought to lead before the jury evidence of some but only a few of the questions and answers put and given in the course of that interview. Objection was taken on behalf of the appellant to that course of action but the objection was repelled by the trial judge. The challenge was renewed on appeal, it being maintained that the interview was conducted in circumstances which were wholly and manifestly unfair to the appellant. Having considered the transcript of the interview, we are driven to the conclusion that some of the questions put by the interviewing police officer can only be described as outrageous. At times the nature of the questioning was such that the questioner did not seem to be seriously interested in a response from the appellant but rather endeavouring to break him down into giving some hoped-for confession by his overbearing and hostile interrogation. Such conduct, particularly where the interviewee was a 15 year old youth, can only be deplored. However, the issue for determination in this appeal is whether the answers to the particular questions, which alone the Crown sought to introduce in evidence, were elicited in such circumstances that the trial judge was bound to hold that they were inadmissible. Having considered the response of the appellant throughout and in detail each of the passages in dispute, we are satisfied that the trial judge was entitled to take the course which he did. Moreover, having regard to the context of the questions and responses, many of which related to matters already otherwise properly in evidence, we are not persuaded that on this ground a miscarriage of justice can be said to have resulted.

 

The appellant also contended that certain evidence given by DC Michelle Lindsay should not have been admitted. This constable had been appointed at an early stage in the police inquiry as a family liaison officer to the appellant's family. While at the appellant's home on 2 July 2003 she had a conversation with him which resulted in him giving her certain information, including providing a sketch plan. The trial judge, in the face of an objection on behalf of the appellant and having heard evidence as to the circumstances surrounding the conversation in question, allowed DC Lindsay's evidence to proceed. Before us it was not contended that the trial judge was not entitled to take in the circumstances the course which he did. Nor was it suggested that any unfairness in this matter - looked at alone - could have been such that a miscarriage of justice had resulted. Even if the term "family liaison officer" was, having regard to the role of the officer in relation to the appellant's family, potentially misleading, there was no evidence that the appellant was in any way in fact misled by the officer's enquiries of him or in the drawing of the sketch. Nor could the information provided be regarded, given the other evidence led at the trial, as being of particular significance by itself. This ground of appeal must accordingly be rejected.

 

By his final numbered ground of appeal the appellant sought to challenge decisions by the trial judge to permit the Advocate depute, in the face of objection on behalf of the appellant, (a) to examine the appellant's mother Corinne Mitchell, and (b) thereafter to lead certain evidence - all in relation to events on 7 October 2003 when the appellant, accompanied by his mother, obtained a tattoo at certain premises in Edinburgh. Mrs Mitchell was led as a Crown witness. She was known to be likely to give evidence in support of the appellant's defence of alibi; and in the event did so. It was in the Crown's interest to discredit her testimony to that effect. Prior to adducing her, the Crown had not disclosed to the defence information about events at the tattoo parlour which had come to its notice in the course of the trial. Whether or not in the circumstances the Crown had an obligation to disclose the information earlier than it did (as to which we express no concluded opinion), we are not persuaded that the absence of earlier notice led to any substantial prejudice to the appellant; it could thus not be said to have led to a miscarriage of justice. The second ground of objection related to the implications which evidence in relation to the events at the tattoo parlour might have for the character of the appellant as presented to the jury. While we are unable to agree with the trial judge that no inference of bad character could possibly be drawn from that evidence, we do not, for reasons which we explain, consider that it can be said that any miscarriage of justice resulted from the leading of the evidence in question. This ground of appeal must accordingly also be rejected.

 

Counsel submitted finally that, even if no particular ground of appeal on its own warranted quashing of the conviction, the matters complained of when taken together were such as should lead to that result. Anyone looking at the evidence in totality, he said, would "be left with a sense of unease". We have already addressed and rejected the ground of appeal based on the proposition that no reasonable jury, having regard to the totality of the evidence, could have returned a guilty verdict. As to other matters of complaint, while there may be cases where the combined effect of a series of unsatisfactory features in a trial may result in a miscarriage of justice, we are not persuaded that this is such a case.

 

In the foregoing circumstances the appellant's appeal against conviction, in so far as based on the existing grounds of appeal, must be refused. In the course of the hearing of the appeal Mr Findlay moved the court to allow to be argued a proposed additional ground of appeal (1A of the appeal process). The Crown having opposed such allowance, the court on 22 February 2008 continued consideration of the appellant's motion to a date to be afterwards fixed, under directions that any further proposed evidence in support of that ground be lodged within four weeks from that date. If the appellant is to insist on his motion, a date will now require to be fixed for its consideration. The appellant also has an appeal against sentence yet to be considered."

 

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

 

 

 


 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Osborne

Lord Kingarth

 

 

 

 

 

 

 

 

 

[2008] HCJAC28

Appeal No: XC90/05

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE GENERAL

 

in

 

APPEAL AGAINST CONVICTION and SENTENCE

 

by

 

LUKE MUIR MITCHELL

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Findlay, Q.C., Farquharson, Young; Beaumont & Co., Edinburgh

Alt: Beckett, Q.C., Balfour; Crown Agent

 

16 May 2008

 

[1] This is the Opinion of the Court to which all its members have contributed substantially.

 

Introduction
[2]
On 21 January 2005, after a trial in the High Court at Edinburgh, the appellant was convicted of the murder of Jodi Jones on 30 June 2003, near Dalkeith in Midlothian. The deceased was 14 years of age. The appellant was just under 15 years of age at the time of the murder, and 16 at the time of his conviction. The appellant was on 11 February 2005 sentenced to detention without limit of time, a punishment part of 20 years being imposed. He has appealed against both conviction and sentence.

[3] At the outset of this appeal, parties indicated their agreement that the report by the trial judge, which provided detailed information about the background circumstances and the evidence led at the trial, was of particular assistance in our consideration of the case. The following summary of the procedural history and evidence is taken mainly from that report. Where the appellant disputes matters of fact alleged to support the Crown case, this has been highlighted in the summary of the submissions made on his behalf before us.

 

Procedural history
[4]
At a preliminary diet on 6 October 2004, counsel for the appellant, Mr Findlay, Q.C., made a motion that the location of the trial be moved outwith the local area of the murder, which it was said included Edinburgh. This was due to the high level of publicity given to the circumstances of the murder, and to the interest which the police had shown in the appellant during their investigations. That motion was refused. On 1 November 2004, a motion for the separation of charges was also refused. The appellant faced charges involving the possession of knives and the supply of controlled drugs as well as the murder charge.

[5] The appellant's trial first called on 11 November 2004, when the unempanelled jurors were directed that it would be inappropriate for them to serve should they know any party to the case, or have any personal connection with its circumstances. Thereafter, a jury was empanelled and evidence was led. On 16 November 2004 it was discovered that the then girlfriend of the appellant had a connection with a juror: she used to be the girlfriend of that juror's son, who himself had attended the same school as the appellant and the deceased. The trial was deserted pro loco et tempore. On 18 November 2004 new jurors were again admonished by the trial judge prior to being empanelled. The trial thereafter took place over a period of 42 days, being the longest in Scottish legal history against a single accused charged with murder.

 

Background

Relationship between the deceased and the appellant
[6]
The appellant and the deceased both attended St David's High School in Dalkeith. They began a relationship in around March 2003. From an early stage that relationship involved sexual intercourse. By June 2003 they were seeing each other most week nights, and at the weekend.

[7] The deceased lived in the Easthouses area of Dalkeith with her mother, Judith Jones, her sister, Janine Jones, and her mother's partner, Alan Ovens. There was some evidence that she took cannabis, but her family generally regarded her as sensible and reliable. She had an interest in music, particularly the rock band Nirvana. She liked to wear dark baggy clothing. The evidence suggested that the appellant was the deceased's first real boyfriend. The appellant lived with his mother, Corinne Mitchell, and his brother, Shane Mitchell, in the Newbattle area, to the west of Easthouses. He had a similar taste in music and clothing. He regularly used cannabis. There was evidence that the appellant was also sexually involved with another 15 year old girl, Kimberley Thomson.

 

Locus

[8] Easthouses and Newbattle are linked by the Roan's Dyke Path, which provides a shortcut between these settlements. The deceased lived around 250 metres from the east end of the path, and the appellant about 600 metres from the west end. The path was about 900 metres long. Evidence suggested that it would take a fit person about 15 minutes to walk from the appellant's house to the east end of the path. The appellant would sometimes collect the deceased at her house. On other occasions they would meet at the east end of the path. The deceased had been told by her mother that she was not allowed to walk along the path on her own.

[9] For much of its length the path is bordered on its north side by a high stone wall, which has fallen into disrepair. The wall and the path run westward from a junction with other paths. To the north of the wall is an area of wooded ground bounded on its north by a park and a golf course. A number of gaps in the wall provide access to the wooded area. Of some importance as regards this appeal are two such gaps. The first is found next to some graffiti ("the Gino point") as one makes one's way along the path westwards from Easthouses. The second gap forms a "V" shape in the wall ("the V point") and is found further along the path, about two-thirds of the distance from its east end. There is an overhang of trees and a number of bushes at this point, which form a kind of canopy overhanging the path.


Events prior to the murder

[10] The deceased's freedom to go out of an evening was restricted by her mother in the weeks prior to her death, but she was released from that restriction on the afternoon of the murder. She arrived home at around 1605 hours. At 1635 she used her mother's mobile phone to send a text message to the appellant. The appellant responded at 1636. A further text was sent by the deceased to him at 1638. The terms of these text messages were not preserved. The deceased left her house at about 1650, informing her mother that she was going to meet the appellant and would be "mucking about up here". At 1654 a call was made from the appellant's mobile telephone to the speaking clock. Between about 1705 and 1720 Leonard Kelly was cycling along the path from the west to the east end, and heard a noise, which he described as "a strangling sort of sound, a human thing", coming from the far side of the wall. John Ferris and Gordon Dickie rode a moped along the path at about the same time. They did not hear anything of the sort described by Kelly. They did not see him, nor he them.

 

The discovery of the deceased's body

[11] The appellant telephoned the deceased's house at 1732, but received no reply. At 1740 he called again, and spoke to Alan Ovens, asking if the deceased was in. He was informed that she had left to meet him. He replied, "OK, cool". Ovens informed Judith Jones about this call. The deceased was due to return home by 2200, but did not. At 2241 Judith Jones sent a text to the appellant's mobile phone, indicating that the deceased was again grounded. The appellant then telephoned Mrs Jones, informing her that he had not seen the deceased. At 2300 a search party, consisting of the deceased's grandmother, Alice Walker, Janine Jones and her boyfriend, Steven Kelly, left the deceased's house and began walking along the path from the Easthouses end heading west. The appellant, accompanied by his dog, walked from the west end of the path heading in the opposite direction. He met the rest of the search party near the east end of the path. Thereafter all the members of the party headed west along the path.

[12] In circumstances more fully described below the deceased's body was found in the wooded area behind the wall bordering the path, about 13.6 metres west of the "V" point. Access was gained to the wooded area via the "V" point. There were foliage, overhanging branches and a tree stump, which obscured the view westwards on the north side of the wall at that point. To obtain a view westwards along the inside of the wall it was necessary to walk some distance northwards beyond this tree stump. Once beyond the stump, the presence of other vegetation, including a large tree, again restricted the view westward along that side of the wall. Only from about that point could one see the feet of the deceased, which were lying closer to the wall than her head.

[13] The deceased's body was found naked apart from some socks on the front part of her feet. Other items of clothing were strewn around the area. Her trousers had been used to tie her hands behind her back. There was no evidence of recent sexual abuse. There was no sign of a struggle except in the area around the body. She had a number of injuries, including cuts to the throat, the right cheek, the left breast, numerous cuts to the stomach and cuts round both eyes. Some of these injuries appeared to have been inflicted post-mortem. Defensive injuries suggested that the deceased had struggled with her assailant. The cut to the neck had severed the deceased's windpipe and jugular vein, as well as the carotid artery on the left side. This would have caused death within a couple of minutes. According to the pathologist, Professor Anthony Busuttil, the implement which caused the injuries to the throat was a stout, sharp-pointed, bladed weapon. Professor Busuttil gave evidence that a reddish hair bobble, or "scrunch", was situated at the back of the deceased's head, but was not easily visible among her hair which was largely uncontained by it.

 

Outline of the Crown case at trial
[14]
In his address to the jury the Advocate depute relied on a number of circumstantial adminicles and highlighted three "key" chapters of evidence.

[15] The first key concerned the discovery of the deceased's body. Of the search party it was the appellant who first went through the "V" point. The Crown asked the jury to accept the evidence of the other members of the search party to the effect that he had gone straight to the "V" as the party moved down the path, that he did not progress beyond this point before returning to it and that he knew to look left and to explore further in that direction as soon as he climbed through the gap. The inference was that he already knew where the body was located. This explanation was to be contrasted with the appellant's account at police interview when he had stated that, having gone some distance past the "V", he had been alerted by the dog to something behind the wall at that point, had retraced his steps and then climbed through the gap.

[16] The second key was the evidence of the witness Andrina Bryson. She had seen a male and a female standing near the Easthouses end of the path at around 1650 or 1655. The female was standing close to the beginning of the path on the pavement looking towards the male, who was on the path. The witness identified the appellant from a book of photographs as being the male whom she had seen. She noted him as wearing a khaki green, hip-length, fishing-style jacket. Its collar was up, and it had a pocket which was bulging. She was unable to identify the female, but gave a description of someone with black, shoulder length hair, which seemed to be contained like a ponytail, wearing a navy blue jumper with a hood and a pair of lighter trousers, which she took to be a pair of jeans. The Crown submitted that, if she had left the house and proceeded directly to the path, the deceased would have been near the Easthouses end of the path at the time of this sighting, and asked the jury to accept that this was a sighting of the appellant and the deceased together.

[17] Thereafter the Crown relied on a variety of other circumstantial adminicles to implicate the appellant.

[18] Lorraine Fleming and Rosemary Walsh identified the appellant as someone whom they had seen at around 1740 to 1745 on the evening of the murder at a gate between the west end of the path and the appellant's house, Miss Fleming suggesting that it appeared that he had been "up to no good".

[19] There was evidence that the appellant had owned and worn a parka-style jacket in the months prior to the murder, that he was wearing such a jacket early in the evening of the deceased's murder and that no such jacket was found when the appellant's home was searched on 4 July 2003. The Crown sought to link this with evidence that a log burner in the back garden of the appellant's home was used on 30 June at around 1830 - 1930 and later, at around 2200, and with evidence of an unusual smell emanating from it.

[20] The appellant had an interest in knives, having been seen, in particular, with a 4 inch lock-knife, contained in a pouch (a "skunting" knife), in the months prior to the murder (a sample knife was lodged as a production). That knife and pouch were not found during the police search of the appellant's house on 4 July 2003. The appellant was seen returning home from the area of Newbattle Road at around 2200 on the night of the murder. The suggestion was made that he could have disposed of the knife at that time. Another knife and pouch were purchased for him in December 2003 by his mother, Corinne Mitchell. During a search of the appellant's home on 14 April 2004, the pouch from the knife, but not the knife itself, was recovered. A number of inscriptions had been made on the pouch: the numbers "666"; an inscription which read "JJ 1989 - 2003", these being the years of the deceased's birth and death; and the words "The finest day I ever had was when tomorrow never came", a quote from the lead singer of Nirvana.

[21] Two days after the murder the appellant purchased, and subsequently viewed, a Marilyn Manson DVD, "The Golden Age of the Grotesque", which included images of apparently naked women tied together and subjected to a form of abduction. Manson had an exhibition of the same name publicised on his website, which included images depicting the death of the actress Elizabeth Short, also known as "The Black Dahlia", who was mutilated and murdered in Los Angeles in 1947. Professor Busuttil gave evidence that, while the circumstances of death were not identical, there was some similarity between the location and type of injury inflicted upon the deceased, and those inflicted upon the actress Elizabeth Short. There was no evidence that the appellant had accessed this website.

[22] Evidence was also led about generally unusual behaviour by the appellant. There was some evidence that he had an interest in Satanism, which was expressed in essays which he wrote and in graffiti which appeared on his school books.

[23] Another circumstance relied on by the Crown was a comment made by the appellant to the witness David High on the evening of 30 June to the effect that the deceased would not be coming out on that evening. This comment was made after the appellant had spoken to Alan Ovens and been informed that the deceased had left to meet him. The Crown invited the inference that the appellant knew the deceased was already dead.

[24] The Crown led evidence to undermine the credibility of Corinne Mitchell. In particular, evidence was led that she was present when the appellant obtained a tattoo in October 2003, and that she had confirmed his age as being over 18. This tattoo depicted a skull with flames coming from it. Mrs Mitchell had stated to members of staff - "that's really him". The Crown's position was that this evidence demonstrated an unhealthy relationship between the appellant and his mother, to the point where she was indulging inappropriate behaviour on his part, and undermined her evidence in support of his alibi. The witness denied several of these allegations. Evidence from members from staff at the tattoo parlour, as well as expert fingerprint evidence of a consent form signed in the name of an acquaintance of Mrs Mitchell with the appellant's fingerprints upon it, was led. This evidence was subject to a defence objection. It was admitted but the jury was directed that it was only relevant to Mrs Mitchell's credibility.

[25] The Crown also referred to the appellant's police statements at interview. In particular, in his closing submissions, the Advocate depute referred, at length, to excerpts from an interview on 14 August 2003. It was suggested that the appellant came across as calculating, clever and dishonest. Reference was made to contradictory statements concerning the failure to raise the alarm when the deceased failed to meet the appellant; to lies regarding his use of cannabis and the amount of contact he had had with Kimberley Thomson; and to outbursts which demonstrated the appellant's temper and arrogance. It was also suggested that the appellant's claim that no time had been fixed for meeting with the deceased and his description of his movements on the evening of the murder were incredible and that his assertion that he thought that the deceased had not turned up perhaps because she had been grounded did not make sense, given his prior conversation with Alan Ovens.

[26] The third key on which the Crown relied was the evidence of Shane Mitchell, the appellant's brother. While not unequivocal, his evidence suggested that the appellant was not at home at the times asserted in the alibi and contradicted the appellant's position in police interviews.

 

Defence case

[27] The appellant did not give evidence. His position was outlined in a number of statements which he gave to police officers, both as a witness and subsequently under caution as a suspect in the case. His position throughout these statements was that he had been at home during the period in which the Crown case suggested the deceased was murdered. He saw the deceased at lunchtime on the day of the murder. She had taken the school bus home after school and he had walked. He had not seen her alive after that point. He had returned home at around 1600 or 1605 and the deceased had texted him at 1620, asking if he was coming out. He had replied that he would do so later on, as he had to make dinner. Arrangements were made for the deceased to come down to the Newbattle area but no time was arranged for the meeting.

[28] The last text was sent at about 1640. The appellant's position was that, thereafter, he had listened to music while cooking dinner. His mother arrived home at 1715. The witness Shane Mitchell was not in the house at this time. He waited at the house for the deceased. He left at around 1730 or 1740, as she had not arrived. He waited at the entrance to the estate on Newbattle Road, moving between that point and a track at Barndale Cottages, closer to the west end of the path. He had walked further along the road at one point to see if he could see the deceased. As he was standing at Barndale Cottages he had seen boys whom he knew from school. He had waited for around 45 minutes. Thereafter, he had wandered into Newbattle Abbey walking up and down a path, wasting time. He then contacted David High and made arrangements to meet him.

[29] The appellant thought that something must have happened which meant that the deceased was not coming out, such as that she had forgotten, changed her mind, been grounded, or met somebody. He had spoken to the witness Ovens around 25 minutes after he had been waiting outside, and was told that the deceased had left. David High had appeared around 25 minutes after the appellant had phoned him. After spending some time at the Abbey, the appellant went home, arriving between 2105 to 2110. He watched a video until he received the text from the deceased's mother at 2241.

[30] As regards the discovery of the deceased's body, the appellant's position was that he had walked some yards ("not even 20 yards" and other estimates being given) past the "V" point with his dog, which had been trained as a tracker dog. It had gone straight to the wall at that point and started clawing up at it. He had then doubled back to the "V" point, handed the dog to Mrs Walker and climbed through. He had looked to his left, walked around six paces in that direction and had seen the deceased's legs close to a tree, and, as he took another step, her body. The dog had started to climb up on the wall at a point "parallel" to the point where the deceased's body was found. Some information in this regard was given to a police liaison officer appointed to the appellant's family, Detective Constable Michelle Lindsay, to whom the appellant provided a sketch plan, indicating where the deceased might have gone and where her body was found.

[31] The appellant lodged special defences of alibi and incrimination. The alibi defence was to the effect that he was not on the Roan's Dyke Path between the hours of 1700 and 1745, being at his home and at other points around the Newbattle Abbey Road area. The special defence of incrimination, unusually, did not name any suspect for the murder, simply stating that the deceased was murdered by "person or persons whose identity is or identities are to the panel unknown". However, the fact that the witnesses Ferris and Dickie had had the opportunity to commit the murder influenced the defence approach to cross-examination, and was hinted at in Mr Findlay's introductory remarks before us.

 

Grounds of appeal

[32] Mr Findlay made submissions on each of the seven grounds on which leave to appeal had been granted. In the course of the hearing he sought and was granted leave to present an additional ground of appeal (ground 3A) to the effect that, having regard to the totality of the evidence, the verdict returned by the jury was a verdict which no reasonable jury properly directed could have returned, reference being made to sec. 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. He submitted that a number of these grounds, of themselves, suggested that a miscarriage of justice had taken place. However, many were interrelated and, when taken in the round, suggested that the appellant had been denied a fair trial at common law. That submission is considered separately, after the following analysis of the individual grounds of appeal.

 

Ground of appeal 1
[33]
Ground of appeal 1 is stated in the following terms:

" That the Learned Trial Judge erred in refusing an application to have the Appellant's trial heard in a jurisdiction outwith the Edinburgh area. In all the circumstances given the nature of the crime under consideration, the local interest which it in turn generated and the significant, substantial and largely speculative press coverage that it attracted on a regular basis until the trial proceedings themselves, the accused could not and did not receive a fair trial.

Whilst leave to appeal the Learned Trial Judge's decision (of 6 October 2004) was granted it was not in the Appellant's interests to pursue the matter and risk further delays to his trial diet, given his age, inexperience of the criminal justice system and the fact that he had been in custody since April 2004 for a trial originally indicted in July 2004. There being significant concerns about the appellant's mental and physical wellbeing, further delays in bringing this matter to trial were not deemed to be in his best interests.

It is accepted that the press coverage of this matter extended nationally. The media interest was not limited to reporting factual matters but amounted to large scale speculation about the Appellant himself which was sustained until this matter proceeded to trial. The Learned Trial Judge failed to take into proper consideration the effect of that coverage in the context of the intense local interest that this murder generated. This crime was committed within a small community the majority of whose working adult population are required to commute into Edinburgh. It will be submitted that outside the local area the chances of any individual taking anything more than a passing interest in the press coverage were reduced and the risk of prejudice to the Appellant could have been eliminated by transferring proceedings outside of Edinburgh. It will further be submitted that the risk of prejudice could not and was not be (sic) met by directions to the jury. This was evidenced in the course of proceedings with the need to discharge a juror in the first trial who failed to disclose a connection to the Appellant notwithstanding clear and robust directions from the Learned Trial Judge prior to being empanelled. The overriding concern of the Court must be to ensure a fair trial. It will be submitted that in refusing to transfer this trial outside of the local area the Learned Trial Judge failed to manage the risk of prejudice to the Appellant and he did not therefore receive a fair trial."

 

Submissions for the appellant

[34] By way of introduction to his submissions, Mr Findlay said that, following his instruction in the case, he had had a meeting with the Advocate depute concerning several matters, but, in particular, the location of the trial. Counsel had had concerns regarding the fairness of any trial that might be held in the Edinburgh area because of the horrific nature of the crime and the publicity which it had attracted. His view had been that any trial ought to be held outwith the Edinburgh area. However, the Crown had thought otherwise and indicted the appellant for trial in Edinburgh. A motion had been brought before the court to the effect that the court should order that the trial be held outwith the Edinburgh area, which motion was resisted by the Crown. The trial judge, who heard this motion, repelled it.

[35] The submission to be made was that the court's failure to accede to the defence motion relating to the location of the trial was unfair in the circumstances of the case. As a consequence, there was no fair trial. A miscarriage of justice had occurred upon that ground. Counsel founded on the commencement, build-up and persistence of intense media coverage of a particularly emotive nature. Given the character of the offence, a violent murder of a young girl in the Edinburgh area, the event had understandably attracted much local interest. Against that background, it was contended that to have held the trial in the Edinburgh area involved a real risk of injustice. Moving the location of the trial might not have completely eliminated that risk, but it could have been substantially reduced. It was, of course, recognised that it was for the Crown to decide the location of a trial, but such a decision was subject to the supervision of the court. It was accepted that traditionally criminal trials had been held in the area where the crime had been committed; however, that traditional rule of practice was now, mainly, honoured in the breach; the modern practice followed by the Crown was to try cases where it was convenient to the Crown to do so. Thus, in substance, the traditional rule had been departed from.

[36] Counsel contended that the media attention given to the present case had been on an exceptional scale. Much of that attention had been in the national press. There was much interest in the case. More particularly, there had been much speculation that the killer of the deceased had been her boyfriend, the appellant. It had been made clear by the police at a fairly early stage that the appellant was the only suspect. That had been the case since 4 July 2003. Anyone taking an interest in current affairs could not have failed to become aware of the background to the case. During the course of the trial itself there had been some evidence which indicated that certain witnesses had in fact been influenced by the publicity of which they had become aware. If that were the case, it was likely that jurors would have been similarly affected.

[37] While the justice system under solemn procedure operated upon the basis that jurors accepted directions given to them by the judge presiding at the trial, it was plain that sometimes trials had had to be deserted because of information or circumstances which had tainted the jury. That showed that the palliative of appropriate directions was not all-powerful. It was impossible to say for sure that the jury in the present case had not been tainted. The position of the appellant was not that there could not have been a fair trial at all; his position was that a fair trial could not have been achieved within the Edinburgh area, in all the circumstances.

[38] In evaluating the appellant's submissions it was necessary to examine some of the coverage itself. There had been prepared several volumes containing extracts of press articles relating to the case. These ran from July 2003. Volume A commenced on 2 July 2003. The first extract was from the Daily Record of that date, which had contained headlines such as "Innocence Destroyed", associated with a photograph of the deceased at a young age, "Find Jodi Maniac", "Soaked in Blood"; "Killer in the Mist" and "Girl's Throat Slit in Attack Frenzy". These headlines had been associated with pages of coverage, including photographs of the locus, the house of the appellant, the house of the deceased and other relevant locations. On subsequent days, the same newspaper had featured a range of similar headlines referring to the killer as a "Fiend" and including "Shocked Villagers Gripped by Fear as Cops Hunt Killer on the Loose". There had been references to the appellant as the boyfriend of the deceased as early as 4 July 2003 when a floral tribute had been left by him near to the locus where the deceased's body had been found. By 5 July 2003 attention was being focused on the position of the appellant. The Daily Record of that date had contained a headline "Jodi's Boy Quizzed. Search at Home of Murdered Girl's Sweetheart". It was contended that that material was significant and powerful.

[39] A wide range of newspapers had been involved at that time in providing similar coverage. These included the Dundee Courier, the Evening Times, the Daily Mail, the Daily Record, the Evening News, the Scotsman, Metro, the Daily Star, the Daily Express and the Herald. In the Herald of 2 July 2003 the murder had been characterised as one of the worst murders that the police officer leading the investigation had seen in 28 years. An atmosphere of fear and suspicion had been engendered by newspaper articles. For example, the Daily Mail of 3 July 2003 bore the headline "Police Warn Parents that Jodi's Brutal Killer Could Strike Again". Volume A of the press coverage showed that that level and character of material continued to be published throughout July 2003. The material had been designed to and had had the effect of driving up the emotional level; it gave the impression that the killer was a maniac, or a monster, and drove home that this had been a local event; the killer might strike again in the same locality, that is to say the Edinburgh area.

[40] Counsel went on to draw our attention to Volume B of the extracts of published material. It contained similar material to Volume A, but other newspapers had been involved. These were the Sun, the Daily Mirror, the Sunday Herald, the Times, the News of the World, the Sunday Mirror, Scotland on Sunday, the Sunday Times and the Press and Journal. The circulations of these newspapers were very extensive. On the other hand, it had to be accepted that they circulated nationally, not just in the Edinburgh area. That having been said, it was submitted that the media coverage was more intense in publications circulating in the east of Scotland.

[41] Our attention was then drawn to the contents of Volume C of the extracts of published material, which related to the month of August 2003. Counsel submitted that this material showed that, at that time, attention had begun to be focused on the appellant himself. There were accounts of the circumstance that he had then been told to stay away from school and not to attend the funeral of the deceased. That had been associated with publicity accorded to statements made by the police, to the effect that they were almost certain that they knew who was responsible for the death of the deceased. Publicity had also been accorded to occasions when the police had called in the appellant for questioning. It was submitted that this material tended to imply that the appellant was in fact the person responsible for the death of the deceased. Further suspicion concerning the position of the appellant inevitably arose from the fact that on 14 August 2003 he was detained and questioned at length by police officers. That event received very widespread publicity.

[42] Counsel went on to draw our attention to Volumes D and E of extracts of press coverage. The former related to the month of September 2003. The latter related to the months of October, November and December of that year. During that period, it was contended that the case had still been prominently covered in the press. At that stage the appellant had been described as the only suspect. In the closing months of 2003 the press coverage of the matter could properly be described as accusatory of the appellant. He had been repeatedly described as the only suspect and references had been made to his exclusion from school and from the funeral of the deceased. There had been extensive and critical publicity accorded to the appellant's visit to the deceased's grave on the day of, but after, her funeral. On 5 September 2003 considerable publicity had been given to the fact that the procurator fiscal was then considering whether there was sufficient evidence for a prosecution against the appellant, who was named as the subject of a police report. Counsel went on to point out that there had been a revival of press interest in the case when the appellant had been arrested and charged with the murder.

[43] Counsel submitted that, having examined a broad cross section of the media material produced, the character of the coverage was clear. Given the nature, extent and duration of the publications involved, he contended that it was impossible to conceive that there were many people who had not acquired some knowledge of the investigation into the murder. Furthermore, they would be aware that the murder was of a young girl who had died in horrific circumstances, where there had been Satanic overtones. The press coverage plainly suggested that the appellant had had something to do with her death. He was seen as central to the police investigation. The press had also suggested that the crime had impacted heavily on the local community, which included Edinburgh itself. Of course, it had to be accepted that memory fades; however, if it were suggested that a killer was "on the loose", that plainly affected people living in the locality concerned. Furthermore, throughout the appellant had been the prime suspect. There had been little or no public support for him.

[44] All this material had been brought to the attention of the Crown and the trial judge. The problem could have been largely eliminated, or at least minimised, if a decision had been taken to the effect that the trial should be held outwith the Edinburgh area. In subsequent discussion, counsel accepted that the decision as to whether a trial should be held in the locality in which the crime had been committed, or elsewhere, was a matter for the exercise of the discretion of the judge before whom the issue came. Thus, it was accepted that this ground of appeal could succeed only if the appellant could persuade the court that the decision actually taken was one which could not have been reached by any reasonable judge. The submission was that that could be said in this case. At this point in the discussion, counsel referred to the transcript of proceedings before the trial judge on 6 October 2004. He accepted that while specific extracts from publicity material relating to dates after September 2003 had not been put before the trial judge, the point had been made that the publicity had continued beyond September 2003 with differing levels of intensity. In that connection reference was made to Volume F of the material. There had been a renewal of intense publicity when the appellant had been arrested and charged with the murder on 14 April 2004, although he had not been named until he had attained 16 years of age. That occurred on 24 July 2004 when there was further publicity about the appellant; this time he was named.

[45] Counsel next turned to make submissions on the authorities which he considered relevant to the matter. The first of these was Stuurman v HM Advocate 1980 J.C. 111. The issue in that case had been whether a fair trial could take place at all in the light of the pre-trial publicity, not whether a trial in a particular location could not be fair. At page 123 the Lord Justice General (Emslie) stated what had become the recognised principle to be applied in cases concerned with pre-trial publicity. The issue had been whether the risk of prejudice in consequence of the publications was so grave that even the careful directions of the trial judge could not reasonably be expected to remove it. Counsel next referred to HM Advocate v Mitchell 1993 S.C.C.R. 793, a case closer to the circumstances of the present case, since the location of the intended trial had been an issue. The sheriff had made a decision in favour of the accused person, considering that, despite a lapse of 12 months, there still existed a risk of prejudice attributable to newspaper publicity, which could not be expected to be removed by suitable directions from the trial judge. Reference was made to the observations of the Lord Justice Clerk at page 801. Counsel went on to draw our attention to McLeod v HM Advocate 1997 J.C. 212. The issue in that case had been whether the effect of pre-trial publicity prejudicial to the accused rendered a particular trial venue inappropriate. In that case, the decision of the sheriff was reversed, the High Court considering that the sheriff should have exercised his discretion by granting the motion before him, which was to desert the diet in order to have a fresh indictment brought in a different court. Reference was made to the observations of Lord Coulsfield at page 215 to 216. In HM Advocate v Fraser 2000 S.C.C.R. 412 the issue had been whether a fair trial could take place at all in the light of prejudicial pre-trial publicity. The contention that no fair trial was possible had been rejected. A factor in the decision was the area in which the preponderance of the published material had been circulated, as appeared from the observations of Lord Osborne at page 421. Counsel went on to rely on Crummock (Scotland) Limited v HM Advocate 2000 J.C. 408. That case had been concerned, not so much with publicity, as with the impartiality of the potential jury. Reference was made to the observations of the Lord Justice Clerk at page 412. Counsel then proceeded to draw our attention to Sinclair v HM Advocate [2007] H.C.J.A.C. 27. The issue in that case had been whether a fair trial could take place. Reference was made to paragraphs [15] and [16] of the Opinion of the Court, delivered by the Lord Justice General. In that Opinion emphasis had been placed upon the presumption that had to be made that there was trust between judge and jury, including an understanding that jurors would not deliberately disobey the instructions which they were given by the trial judge.

[46] At this point in the discussion, the issue was raised whether it was significant that the appellant had decided not to appeal against the decision reached in advance of the trial by the trial judge in relation to the issue of its location. Counsel submitted that that circumstance was of no significance. He accepted that, after trial, the appellant required to demonstrate that the decision in question constituted a miscarriage of justice; there was no dispute about that. There had been good reasons why an appeal had not been taken at that stage.

[47] Counsel then referred to Mitchell v HM Advocate [2006] H.C.J.A.C. 84 in which a decision had been given in the present case, following a hearing under section 107(8) of the 1995 Act. In that decision, it had been held that ground of appeal 1 was arguable.

[48] A factor of importance in the present case was the circumstance that the trial judge had given extensive guidance to the jury at the commencement of the first trial, which had had to be aborted. What he had said was reproduced in Appendix A to the trial judge's report to this court. What had followed that introduction to the jury was that the first trial had commenced, after which a problem had arisen. One juror had been lost on account of her not being well. Following that, a problem had arisen relating to a second juror on the fourth day of the trial. The nature of that problem is described in paragraph [114] of the trial judge's report to this court and summarised at paragraph [5] of this opinion. It had been submitted to the trial judge that the juror would have been discharged from service as a juror at the outset if it had been known that the circumstances existed that had subsequently been brought to the attention of the court. The trial judge concluded that that juror ought to be discharged. What these circumstances showed, submitted counsel, was that clear and unequivocal directions given to the jurors at the outset of the trial had not been obtempered. The explanation for that was unknown. The foregoing considerations tended to undermine the assumption that the jury would necessarily follow the directions given by the trial judge in relation to the effect of extraneous influences, such as publicity.

[49] Counsel submitted that, in evaluating this ground of appeal, the court was in the realm of the assessment of risks to the proper administration of justice caused by the publicity which the case had attracted. In that connection he made reference to certain passages of evidence at the trial. At page 544 of the transcript of proceedings for 2 December 2004, in the cross-examination of Rosemary Walsh, there was a passage of significance: the witness agreed that by 15 August 2003 the murder inquiry had been running for some time with no person charged; there was much concern and anxiety in the location of the murder about that circumstance. Likewise, at page 599 of the same volume, in the cross-examination of Andrew Holburn, the witness agreed that he had taken an interest in what had been reported in newspapers about the matter. He had seen certain photographs of the deceased published, but not of the appellant. At page 629 and following of the same volume of the transcript, the witness Carol Heatlie agreed that she had seen photographs in newspapers and on television of the person whom she claimed to recognise in connection with her evidence, namely the appellant. She had seen the interview conducted on television with the appellant and his mother. It was difficult to say that such influences had not affected the evidence of such a witness. Reference was also made to pages 733 to 734 of the transcript of proceedings of 6 December 2004 narrating the evidence of George Ramage. Counsel also drew attention to pages 344 to 345 of the transcript of proceedings of 1 December 2004, which recorded the evidence of Lorraine Fleming. She had seen news photographs and reports of the appellant. It was contended that what she described amounted to the "building up of a piece of evidence" concerning identification. It was submitted that the foregoing examples showed that media coverage had had a significant influence in relation to witnesses.

[50] Counsel submitted that there were several features of the present case, consideration of which led to the conclusion that a miscarriage of justice had occurred on account of the decision of the trial judge that the trial should proceed in Edinburgh. These were, first, the fact that the victim of the crime was a young girl; second, the nature and extent of the publicity accorded to the case and the level of emotion engendered by it; third, the publicity regarding the horrific circumstances of the murder and the coverage of the position of the appellant himself; fourth, the question of whether the publicity was so local or so national in character that moving the case from Edinburgh to some other location would be a cogent step to take; and fifth, the matter of the management of the trial. The appellant's contention was that a miscarriage of justice had occurred. If that were determined by the court, there could be a fresh trial elsewhere; the appellant would not resist a motion for a fresh trial.

[51] Questioned by the court as to whether it was being contended that the trial judge, in reaching his decision concerning the location of the trial, had ignored relevant material, counsel said that the basis of the criticism of his decision was that it was one which no reasonable judge could have reached. The trial judge had failed to give proper weight to the material put before him and to reach the only reasonable conclusion that, in the circumstances, was open to him; that is to say to obviate a demonstrable risk of prejudice by causing the trial to be held in a location other than Edinburgh. The problem was that jurors did not necessarily obtemper the instructions given to them by a presiding judge. Other than possible inconvenience to some persons, there was no reason why the trial could not have been caused to take place away from Edinburgh. The palliative of judicial directions can never be absolutely effective, as was recognised in the case of Stuurman v HM Advocate.

 

Submissions of the Advocate depute

[52] The Advocate depute began by drawing attention to the background of this ground of appeal. As appeared from the decision of the court under section 107(8) of the 1995 Act in the present case, paragraphs [11], [12] and [13], the court had concluded, only with some hesitation, that this ground of appeal was arguable. The matter of this ground of appeal was the subject of treatment by the trial judge in his report between paragraphs [89] and [99]. The position of the Crown was that the decision of the trial judge as to the location of the trial had been reasonable in all the circumstances. A miscarriage of justice could not arise out of a reasonable decision by the trial judge.

[53] It was important to recognise that there had been an acceptance on the part of the appellant that a fair trial was possible. That had been the position taken up before the trial judge at the preliminary hearing on 6 October 2004, as appeared from paragraph [90] of his report, and it was reiterated in the appellant's submissions before this court. It followed from that position that any potential prejudice to the appellant created by media coverage was capable of being cured in some trial court, somewhere. Thus, what was being suggested on behalf of the appellant was that measures to cure it, which would have been sufficient elsewhere, were not sufficient in a trial in Edinburgh.

[54] It was accepted by everyone that there had been extensive media coverage of the case, as appeared from paragraph [96] of the trial judge's report. However, the copies of the coverage produced showed that that publicity was of a national character, both in the press and on television. That had an important bearing upon the issue relating to the location of the trial. Furthermore, it ought to be recognised that a substantial part of the publicity which the case had attracted was based upon statements made by or on behalf of the appellant. The fact that some of the publicity had been generated in that way was relevant to the present issue. If some disadvantage was self-inflicted, the appellant could hardly complain of it.

[55] Most of the publicity had occurred in the immediate aftermath of the death of the deceased. It was a matter of concession that, by around September 2003, the intensity of the coverage had very largely died down. In that connection reference was made to pages 70 to 71 of the transcript of proceedings of 6 October 2004. In addition, it had been accepted that the publicity in itself was not of what could be called an improper nature. For example, it did not involve the revelation of previous convictions.

[56] It had been suggested that there was significance in the fact of the atmosphere of fear that had been generated by the publicity in the Edinburgh area. However, even if there had been a heightened risk that Edinburgh jurors might be fearful of the murderer, they would not be likely to convict the wrong person because of that. Rather, they would be anxious to convict the actual perpetrator. In this connection the Advocate depute relied on Crummock (Scotland) Limited v HM Advocate, particularly paragraph [13] of the Opinion of the Court. The present case contrasted sharply with Sinclair v HM Advocate, as appeared from paragraphs [3] to [7], [16] and [20] of the Opinion of the Court; the argument under consideration there was that no fair trial was possible anywhere.

[57] A particular point made on the appellant's behalf was that, in the media coverage during the period of July to September 2003, the appellant had been portrayed as the "only suspect". However, that was not said itself to be prejudicial; he was, in fact, also the only person who had been indicted. That was a feature of many prosecutions. Furthermore, he had had a relationship with the deceased and had been due to meet her on the day of her death. In this connection the Advocate depute drew attention to B.B.C., Petitioners 2002 J.C. 27, particularly paragraph [19]. In that case the court had concluded that an order under section 4(2) of the Contempt of Court Act 1981 was unnecessary, albeit that, in the trial in question, there were likely to be frequent references to the incriminee in a trial for murder of a nature highly prejudicial to him. The court had expressed its confidence in the system of trial by jury to provide a fair trial for the incriminee with proper directions. The Advocate depute, in this connection, also relied upon Montgomery v HM Advocate 2001 S.C. (P.C.) 1 at pages 24 and 26 - 31.

[58] The Advocate depute wished to emphasise the significance of the national character of the publicity in the present case. If the preponderance of the publicity was national in character, then the benefit of the trial being held in a location within Scotland but remote from Edinburgh would be illusory, since jurors in such location would have been just as much exposed to the publicity as jurors in Edinburgh would have been. Furthermore, it was important to note that none of the jurors finally selected for the trial lived in the Dalkeith area, as appeared from paragraph [118] of the trial judge's report. Of the jury, as finally constituted, ten jurors lived in Edinburgh and one each came from Whitburn, Livingston, South Queensferry, Ratho and Penicuik. No objection had been taken to the juror from Penicuik. Thus the jury emanated from areas other than that most directly affected by the occurrence of the crime and the associated publicity.

[59] It had to be borne in mind that the trial judge had taken thorough steps to warn the jury as regards material which they could not take into account in reaching their decision. In this connection the Advocate depute relied on what the trial judge had said at page 7 and following of the transcript of his charge to the jury. The instructions given were quite clear; extraneous material had to be excluded from the minds of the jurors.

[60] It had been conceded on behalf of the appellant that the trial judge, in reaching a decision as to whether the trial should take place in Edinburgh or not, had been exercising a discretion. Accordingly, his decision could not relevantly be attacked unless one of the recognised bases of criticism of a discretionary decision could be established. The contention was that the decision reached was one which no reasonable trial judge could have reached. In this connection it had been said that nothing would have been lost by trying the case elsewhere than in Edinburgh. But that was beside the point. The question was whether the trial judge had applied the proper test and reached a decision which was within the range of reasonable decisions. It was submitted that the reasons that he had given for his decision at pages 201 to 204 of the transcript of proceedings of 6 October 2004 showed that he had done that. In any event, even if the trial judge had reached an unreasonable decision, it was still necessary for the appellant to demonstrate that a miscarriage of justice had occurred.

[61] It had been argued on behalf of the appellant that the Crown allocated cases to locations as a matter of its convenience. That was not so. Since April 2005 the Crown did not select venues for trials. It selected venues for preliminary hearings. Thereafter, it was the court itself that allocated cases to a particular venue.

[62] It was the position that following upon the decision of the trial judge as to the location of the trial, the appellant had been given leave to appeal that decision. For reasons given by counsel for the appellant, he had not availed himself of that grant of leave by appealing in advance of the trial. It had to be emphasised that that decision had had the result of imposing an additional burden upon the appellant now, in respect that it was now necessary for him to demonstrate that a miscarriage of justice had occurred as a result of the trial judge's decision. That would not have been necessary had there been an immediate appeal of the decision in question.

[63]