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The Report of an Inquiry into Crown Decision-Making in the Case of the Murder of Surjit Singh Chhokar

Chairman: The Rt. Hon. Sir Anthony Campbell

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SP Paper 425

Session 1(2001)

 

Preface

To The Right Honourable Colin Boyd QC

Her Majesty's Advocate

I wish to submit my report on the independent examination that you asked me to conduct into the Crown's decision making following the death of Surjit Singh Chhokar at Wishaw on 4 November 1998, together with my recommendations for change.

Although I did not have any power to insist upon the attendance of witnesses everyone that I invited to meet me did so. I would like to express my gratitude to them.

Throughout the inquiry I have been assisted by Mr G.J.B.Moynihan Q.C as independent counsel and by Miss Lindsey Anderson who has acted as secretary. I could not have been more fortunate. Their knowledge and experience of criminal law and procedure in Scotland has been invaluable to me and they have each been indefatigable in everything that they have done to assist me with this inquiry. I am indebted to them not only for this but also for their unfailing good humour.

Edinburgh

June 2001

CHAPTER 1

Introduction

On the night of Wednesday 4 November 1998 Surjit Singh Chhokar, a thirty-two year old Sikh, was attacked by three men in Garrion Street in Overtown, North Lanarkshire. He received three stab wounds to the front of his body and one of these transfixed the right ventricle of his heart and penetrated his diaphragm and liver1 and he died as a result of blood loss from this wound.

Within a matter of days Andrew Alexander Marshall Coulter and David Shields Montgomery appeared in court charged with his murder and they were committed for further examination in custody. A week after his death Ronnie Coulter appeared in court charged with his murder and he too was committed in custody for further examination.

On 13 November 1998 the Crown Office issued an instruction that Ronnie Coulter alone should be fully committed (committed for trial) and that Andrew Coulter and David Montgomery be released and their positions kept under review.

On 2 March 1999 the trial of Ronnie Coulter began at the High Court in Glasgow and on 9 March the jury found him not guilty of murder but guilty of assault. After the verdict the Crown did not move for sentence and Lord McCluskey, the trial judge, addressed the jury in these terms:

"Ladies and gentlemen, a young man was murdered in a public street by one or more persons whose identities have been freely discussed in this case.

For reasons that I cannot begin to understand, one, and only one of those persons was placed in the dock and charged with the crime. That is a matter which, to me, as a judge of considerable experience, passes my understanding altogether, I cannot begin to understand how it happened and I shall be taking steps to see if I can discover what the reason was for the course that was taken. Unfortunately I know no more than you do about that particular background.

The Crown chose not to move for sentence, no doubt that was because the Accused, having been found guilty of what was a simple assault, and because he had already spent some 3 ½ months or thereby in prison, it would be excessive, in the Crown's view, to move for sentence. Whether that was a right decision or not is not a matter for me to comment on any further upon."2

No restriction had been placed on reporting of the proceedings, under section 4 of the Contempt of Court Act 1981, and these comments received widespread publicity. The public statement issued in response by Lord Hardie, the Lord Advocate at the time, criticising the judge for making these remarks also attracted the interest of the media. In it he said:

"It is a matter of regret that a judge of such experience should make such public pronouncements in ignorance of the background to the case. Such uninformed and ill-advised remarks do not serve the interests of justice and fail to appreciate the respective roles of the Lord Advocate and the Judiciary.

Prosecution decisions fall within the independent exercise of the discretion of the Lord Advocate, who is not accountable to the High Court of Justiciary, or any of its judges, for such decisions.

From the preliminary report given to me I am satisfied that the action taken in this case was the most appropriate in the circumstances and the reasons for it are sound."

On 2 July 1999 Andrew Coulter and David Montgomery were each served with an indictment charging them with the murder of Mr Chhokar. The Crown obtained an order on 26 August 1999, under the Contempt of Court Act 1981, prohibiting further publication of reports on these proceedings until after the trial.

There followed a preliminary legal challenge in the High Court by Andrew Coulter and David Montgomery, in which they asked the court to rule that the risk of prejudice, from the publicity after the trial of Ronnie Coulter, was such that they could not obtain a fair trial. Their challenge, which raised human rights and devolution issues, failed in the High Court of Justiciary and on appeal to the Privy Council.3

0n 10th November 2000 Andrew Coulter and David Montgomery appeared at the High Court in Glasgow charged with the murder of Mr Chhokar and with housebreaking and uttering. At the conclusion of the trial before Lord Bonomy and a jury, Andrew Coulter was acquitted of murder and convicted of housebreaking and assault and David Montgomery was acquitted of all charges.

The fact that no one has been convicted of the murder of Mr Chhokar continues to cause widespread public concern. His parents and immediate family feel that the criminal justice system in Scotland has failed them and many others agree with them. Some have voiced their views through the Chhokar Family Justice Campaign with Mr Aamer Anwar as its spokesman. The failure to obtain a conviction for murder has been attributed to the fact that all three men did not stand trial together. At each trial the accused before the court blamed another not before the court for stabbing Mr Chhokar to death. This apparent mishandling of the case has led some to ask the further question was the decision to prosecute in this way influenced by the fact that Mr Chhokar was a Sikh and those accused of his murder where white?

The purpose of this inquiry is to discover the reason or reasons why the Crown decided to prosecute Ronnie Coulter alone and to leave the decision about Andrew Coulter and David Montgomery in abeyance, and to report if any evidence is found of racism.

CHAPTER 2

Terms of reference of the inquiry

On 6 November 2000 the present Lord Advocate informed me that he intended to initiate an inquiry into the Crown decision-making in these two cases. At that time the trial of Andrew Coulter and David Montgomery had yet to begin and when I was asked formally to conduct the inquiry on 14 November 2000 their trial was continuing. It was not appropriate for me to begin an inquiry before the second trial was over and the time for appeal against any conviction had passed.

On 8 December 2000 my appointment was confirmed and I was given my terms of reference, which are:

"To carry out an independent examination of the Crown's decision making following the death of Surjit Singh Chhokar at Wishaw on 4 November 1998 including the decisions of the Procurator Fiscal's Office in Hamilton, Crown Office staff, Advocate Deputes and Law Officers leading to the first prosecution and trial of Ronnie Coulter and secondly to the prosecution and trial of David Montgomery and Andrew Coulter and to enquire in particular into the decision to indict Ronnie Coulter alone.

Thereafter to make findings and recommendations for changes in practice and procedure as seen fit."

In the letter of appointment the Lord Advocate added "If you should discover any evidence of racist behaviour or attitude of an either individual or institutional kind then I would expect that you would bring that out in your report."

I asked for confirmation that this reference to racist behaviour or attitude is confined to the Crown's decision making process and that an entirely independent inquiry, conducted by Dr Raj Jandoo, Advocate, would examine the issue of racism in the Crown Office in the broader sense. The Solicitor-General informed me that my interpretation of my remit was correct.

Racism

Sir William Macpherson of Cluny, in his report4 on the Stephen Lawrence Inquiry, said that the phrase "institutional racism is the subject of much debate". I have no wish to add to this debate but as it forms part of my remit to look for evidence of racist behaviour or attitude of an either individual or institutional kind it is necessary to explain what I understand it to mean.

Racism is in legal terms unlawful racial discrimination and it may be direct or indirect. Direct discrimination includes less favourable treatment of a person on the ground of colour or some other forbidden ground. Indirect discrimination arises where members of different ethnic groups are treated equally in a formal sense but where a practice, procedure or rule puts the members of one ethnic group at a substantial disadvantage compared with another without any objective justification. Direct and indirect discrimination may occur without any intention to discriminate or any discriminatory motive.

By statute5 it is now unlawful for a public authority, in carrying out any functions of the authority, to do any act which constitutes discrimination. The only exceptions in the case of a prosecuting authority are decisions not to institute criminal proceedings and not to continue them.

In the context of this inquiry I take institutional racism to mean racial discrimination which is not only an individual discriminatory act but is systemic, in the sense that it results from a practice or procedure that operates within the institution.

During my examination of the decisions that were made I have been alert to the danger of what has been described by Lord Nicholls of Birkenhead6 as "subconscious motivation". As he said "All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated...."

The form of the Inquiry

This was not an Inquiry with statutory and coercive powers and to obtain the evidence that I required I was dependent upon the co-operation of those who had a role in the process leading to the decisions that were made. I am pleased to be able to say that everyone I invited to assist me agreed to do so.

Mr and Mrs Chhokar were reluctant to meet with me as they believe that the Inquiry should have been held in public. When they agreed to do so, accompanied by their daughter Mrs Sengha, Mr Anwar who was also present made it clear to me that this remains their view. I was given a copy of the terms of reference that Mr Anwar has prepared for such an inquiry.

At this meeting I invited the family, through Mr Anwar to instruct counsel to review tables that had been prepared showing the sufficiency of evidence at various stages and to express an opinion on it.

Before this invitation was to be taken up an estimate of cost was to be provided to me and I offered to recommend that it be paid from public funds.

This offer was not taken up by Mr Anwar as he wished me to address his request that the Inquiry be held in public before he did so.

The Lord Advocate said in his statement to the Scottish Parliament on 29 November 20007 that the Inquiry would be conducted in private. It was therefore not open to me to alter his decision.

Where the Inquiry was held

I decided to conduct the Inquiry away from the atmosphere of the courts and to hold it both in Edinburgh and Glasgow in ease of those who were attending it. I took evidence on five days in Edinburgh and eight days in Glasgow, spread over a period of three months. This lengthy period was in part due to my other judicial commitments and in part due to the fact that many of those I wished to see were themselves professionally engaged in criminal proceedings and unavailable for considerable periods of time.

The procedure adopted

The procedure I adopted was intended to be flexible and informal in so far as this was compatible with the overriding requirements of fairness and thoroughness. Fairness that is not only to those whose decisions were under examination but also to the public who have an interest in the proper administration of justice.

The decisions I had to examine were made at different stages during the prosecution process. Where witnesses were asked to comment on a particular decision it was essential that they should do so on the basis of the evidence that was available to the decision maker at the time and to exclude from consideration evidence that became available later. To this end they were given a copy of tables showing the sufficiency of evidence at various stages of the case which were prepared by Mr G.J. B. Moynihan QC.

Notice to witnesses

Where I considered it necessary a witness was given notice in advance of the areas that the questioning was intended to cover. At the interviews of those who took part in the decision making process they were asked questions by Mr Moynihan and myself and at the conclusion Miss Anderson prepared a précis of their evidence, and this was sent to them later for their approval. They were told that they were at liberty to amend or add to the record as they saw fit and to mark any passage where they had said something that they would prefer not to have attributed to them.

Where I have made comments that may appear to be critical of anyone I have given the person an opportunity to draw to my attention anything that they wished me to take into consideration before the report was completed.

CHAPTER 3

The Prosecution

Sir Gerald Gordon CBE QC LLD has written:

"My own experience both as a student and as a teacher has led me to believe that it is very difficult, if not impossible, to understand any system of criminal procedure without actual day to day and hand to hand experience of its workings. This is especially true of Scottish criminal procedure where the oral law of Crown Office practice is more important than the written law of statute or judicial decision; Crown Office being that part of the Lord Advocate's Department which is concerned with criminal prosecutions".8

Those who are unfamiliar with criminal procedure in Scotland may find a brief description helpful at this stage of the various offices, time limits and evidential requirements.

"The Crown"

The expression "the Crown" includes the Law Officers, the advocates depute and the Procurator Fiscal Service headed by the Crown Agent.

The Lord Advocate and the Solicitor General are the Scottish Law Officers and they are both members of the Scottish Executive. They and the advocates depute are known collectively as Crown counsel.

Crown counsel are assisted by the Crown Agent and his deputy and by members of the Procurator Fiscal Service some of whom form what is called the High Court unit. They all work in the Crown Office and this is also used as an institutional name.9

The Lord Advocate is responsible for the investigation of crime in Scotland and for prosecutions in the High Court, sheriff and district courts. With few exceptions, crimes and offences may be prosecuted only by the Lord Advocate or his deputes or by procurators fiscal and their deputes.

Advocate deputes

Advocate deputes are usually practising members of the Faculty of Advocates who are appointed by the Lord Advocate to act as his deputes for a period of three years. The senior advocate depute is known as the Home Depute and is based in Edinburgh. The advocates depute decide whether cases should be prosecuted and if so whether on indictment in the sheriff or High Court or summarily. This is referred to as "marking" cases.

The Lord Advocate and the court

Lord Hope of Craighead describes the relative positions of the Lord Advocate and the court in Montgomery v Lord Advocate10 where he said;

"The fundamental rule on which the system of criminal justice in Scotland is based is that the Lord Advocate is, as it is put, "the master of the instance".

He continues by giving examples and one of these is particularly apposite:

"The first, which is indicated by the passage which I have quoted from Hume's Commentaries, is that the court has no power to pronounce a sentence where the verdict is guilty unless the prosecutor, who acts under the authority of the Lord Advocate, moves for sentence: Hume, vol.11, 470,471; Paterson v H.M.Advocate 1974 J.C.35. It was the fact that the Advocate Depute did not move for sentence after Ronnie Coulter was found guilty only of having assaulted Surjit Singh Chhokar, with the result that the judge had no alternative but to direct his release from custody, that led to the making of the remarks in this case that generated such publicity."

The advocate depute's powers

By his commission the Lord Advocate delegates to an advocate depute power "generally to do everything necessary in the premises that I could do myself if present." Although an advocate depute has these wide powers allowing him to accept pleas, to withdraw charges and even to desert (withdraw) an indictment they are limited in some respects. For example, if an accused has been fully committed on a charge of murder only a Law Officer may decide whether a charge should continue as murder or be reduced say to culpable homicide or marked "no proceedings".

The procurators fiscal

The public prosecutor in the sheriff and district courts is the procurator fiscal. Each sheriffdom in Scotland has a regional procurator fiscal and there is a procurator fiscal for each sheriff court district within that region. The procurator fiscal is responsible for the investigation of all crimes within that district including those that are reported to Crown counsel with a view to prosecution in the High Court of Justiciary.

The time limits

The trial of a person fully committed in custody must begin within 110 days11 of committal. If it does not he must be liberated forthwith and cannot be charged again with that offence. In certain limited circumstances a judge may extend the time. Fault on the part of the prosecutor is specifically excluded as a circumstance for granting an extension of time12.

If the accused is on bail he cannot be tried on indictment unless the trial begins within a period of twelve months of his first appearance on petition.13 If the trial does not begin within this period he will be " for ever free from all question or process for that offence".

The indictment

An accused in custody must be served with an indictment signed by Crown counsel by the 80th day after full committal. This allows 29 clear days14 for all accused (including those on bail) to prepare their defence before the start of the trial at the expiry of the time limit.

Experience has shown that the accused frequently requires an extension of time in custody cases to allow more time to prepare the defence.

The indictment consists of the charges and lists of productions (the exhibits) and the names of the witnesses. It is the first

document the accused person will see charging him with the crime as the petition which went before is only a preliminary document.

Notice of special defence of incrimination

If the accused intends to blame someone else for the crime he is required to give notice of this plea of incrimination to the Crown not less than 10 clear days before the trial.15 Prior to his trial Ronnie Coulter gave notice of the defence of incrimination in which he named David Montgomery and Andrew Coulter. Likewise before their trial David Montgomery and Andrew Coulter each served notice of the defence of incrimination naming Ronnie Coulter.

Evidence

When considering the sufficiency of the evidence it is important to remember that Scottish criminal procedure requires each and every essential fact required to establish a crime to be proved by evidence derived from more than one source before a court may convict.

CHAPTER 4

The events of 4th November 1998

This description is based on transcripts of evidence given at the trials where these are available, precognitions and police statements.

Gowkthrapple and Overtown

Wishaw is 17 ½ miles by road from the centre of Glasgow and the Gowthrapple estate is a suburb of Wishaw. Surjit Singh Chhokar had a flat on the eleventh floor of Caplaw Tower in the Gowkthrapple estate. Andrew Coulter also lived in Caplaw Tower on the third floor as did his uncle Ronnie Coulter whose flat was on the first floor.

Caplaw Tower, one of three high-rise tower blocks is surrounded by blocks of flats at a lower-level. They were all built in the 1960's. Although a considerable effort has been made recently to improve the appearance of the buildings in the estate, by adding coloured cladding, it is rather bleak and has few facilities beyond one or two shops. I was told that most tenants move out of Caplaw Tower at the earliest opportunity though some have lived there for many years. It is common for flats to be broken into and it has been reported in the press that at least one shopkeeper in Gowkthrapple, of an Asian ethnic background, has suffered from intimidation16.

Mr Chhokar's sister said that her brother told his family that people were bothering him in the area. He had been robbed and he felt that he was being picked upon.17

Overtown is a village about 1.4 miles from Gowkthrapple, close to the river Clyde. It has retained much of its village atmosphere and many of the inhabitants are from families who have lived there for many generations. Mrs Elizabeth Bryce lived in Garrion Street in Overtown, which is composed of four-in-a block homes with a neat and well-maintained appearance.

The missing giro cheque

By April or May 1998 Mr Chhokar had separated from his wife and family and was living in the flat on the top floor of Caplaw Tower. He was friendly with Elizabeth Bryce, who was

divorced. His flat was broken into in July or August 1998 and after that he spent most nights at Mrs Bryce's house in Garrion Street and only a few in his flat. Shortly before his death he began work as a waiter in an Indian restaurant in Bellshill. He was also claiming benefit which was paid by giro cheque, sent to his address at Caplaw Tower.

Mr Chhokar spent the night of 3 November 1998 at Mrs Bryce's house in Garrion Street and shortly after mid day they drove to Caplaw Tower to collect his giro cheque. He found that his flat had been broken into and that the cheque was missing.

Mrs Bryce and Mr Chhokar soon discovered that Andrew Coulter had cashed Mr Chhokar's giro cheque at Overtown post office at 11.30 that morning and had received £100.70. It appears that someone other than Mr Chhokar had endorsed his name on the back of the cheque purporting to authorise payment to be made to Andrew Coulter. Andrew Coulter signed the cheque and the cashing of it was recorded on the CCTV system in the post office.

Mr Chhokar went to the Housing Department with Mrs Bryce on the afternoon of 4th November 1998 and signed a declaration giving up his tenancy at Caplaw Tower. He was told that he could not formally give up the tenancy until 30th November 1998.

Mrs Bryce's meeting with Andrew Coulter

In the afternoon Mr Chhokar left for work in the restaurant in Bellshill and he arrived there at around 3.45pm. Soon after he left for work Mrs Bryce went to the house at 6 Overdale Place in Overtown where Andrew Coulter's mother (Margaret Chisholm) lives. She had words with her and returned home to Garrion Street. A few minutes later a Ford Ka car drew up at her house driven by David Montgomery with Margaret Chisholm, Andrew Coulter and his sister Rhona as passengers. She confronted Andrew Coulter about the giro cheque and he told her that at 11.30am that morning Mr Chhokar asked him to cash the cheque for him and gave him £20 for doing so. Mrs Bryce said that she did not believe him as she was with Mr Chhokar at that time and she added that the police would be involved. Andrew Coulter responded by saying, "Well if I am getting in trouble with the police, he's getting it."

Mrs Bryce arranges a meeting between Andrew Coulter and Mr Chhokar

Soon after they left Mrs Bryce returned to Margaret Chisholm's house in Overdale Place to speak to Andrew Coulter. She told him to come round to her house in Garrion Street at midnight to see Surjit Chhokar about the giro cheque. She mentioned midnight to allow Mr Chhokar time to get home from work and have a bath before Andrew Coulter called. Mrs Chisholm said that Mrs Bryce asked her son to call round at 11.30pm and not midnight and Andrew Coulter told the police that he was to go round at 11.30pm or midnight.

The Coulter's reaction

Two young girls, Donna Campbell, then a school girl aged 15, and Corrine Chambers who was 16, were in Caplaw Place on the afternoon of 4 November. Around 4.30pm they saw Ronnie Coulter at the window of his flat at 8 Caplaw Tower. They asked him where his nephew Andrew Coulter was and he told them that Andrew would be back in a minute and invited them to come up to his flat and wait for him to return. Ronnie Coulter told Donna Campbell that Andrew wanted her to tell a lie for him. When he arrived Andrew Coulter instructed Donna Campbell if the police contacted her to say that they had walked Corrine Chambers to a bus stop and, after Corrine left, a black Orion car pulled up and the driver asked Andrew to cash a giro.

The conversation in the flat that evening

Around 6pm the two girls left Ronnie Coulter's flat and they were in and out of the flat during the remainder of the evening until 9pm or 9.30pm when they moved to Andrew Coulter's flat. During the time that they were in Ronnie Coulter's flat there was talk about the cooker in Surjit Chhokar's flat and whether anyone would buy it. The Coulters carried it down to the floor where Ronnie lived and put it in a lock up store on the landing. They talked about Chhokar and said that "Ches" (David Montgomery) was going to drive them up between 11.30pm and midnight, provided that he had not been drinking. He would park round the corner and they would walk round to Chhokar's house and get him when he returned from work. Andrew Coulter said, more than once, that he was going up to give Chhokar a doing that night and warn him not to go to the police. He said that he was going to hit Chhokar's kneecaps with his bat and steal his jewellery and go through his pockets. Ronnie Coulter said that he was going with Andrew and if there was a fight he would join in. Ronnie Coulter added that he would throw Chhokar off a bridge and take jewellery from him.

Donna Campbell said that the Coulters were both laughing as they talked and that Andrew said, "We'll get a spoon and take his eyes out". One of them said "I'm going to take him down the Clyde and chuck him off the bridge and then drive his car to the Priory and burn it out". From these comments the two girls were left with the impression that if Andrew Coulter was getting the worst of it Ronnie was going to join in. Although the Coulters were both drinking neither of them was drunk and the girls did not hear any reference to a knife.

The conversation between Andrew Coulter and Jamie Rooney

According to his precognition, Jamie Rooney was talking to Andrew Coulter earlier in the evening in Andrew Coulter's flat. He told Rooney that Chhokar was saying that he had kicked in his front door and stolen his giro and that he was going to see Chhokar that night. Rooney noticed a bat on the window sill and he asked Andrew Coulter what it was for and he said that he was taking it with him. Rooney said he tried to persuade him not to take it but Coulter told him that he was taking it. In the past Rooney said he had heard Andrew Coulter refer to Chhokar as a "black bastard".

At the trial of Ronnie Coulter, Jamie Rooney gave evidence of being in Andrew's flat at 10.30pm and of seeing the bat. As Ronnie Coulter was not present during the conversation between Jamie Rooney and Andrew Coulter the rule against hearsay prevented the Crown from leading evidence of words spoken by Andrew in the absence of Ronnie.

Mrs Bryce's evidence about seeing the accused in Garrion Street

Mrs Bryce told the jury at the trial of Ronnie Coulter that around 8.20pm she saw Ronnie Coulter, Andrew Coulter and Ches (Montgomery) walking past her house from the direction of Main Street towards Gilburn Street. They returned, walking in the opposite direction at 8.30pm. She said that they passed her house five times in all between 8.20pm and 10pm. On each occasion Andrew Coulter looked in the direction of her living room as he passed by.

There are seven closed circuit television cameras mounted in Caplaw Tower and police officers examined video film taken by these cameras between 7pm on 4th November and 3am on 5th November. They said that there was no indication of either Coulter leaving Caplaw Tower before 11.18pm. The film shows Ronnie Coulter leaving at 11.18pm followed by Andrew Coulter ten seconds later. Film taken from cameras in the block at 34/64 Caplaw Place shows David Montgomery leaving there at 11.17pm. His Ford Ka was seen leaving Caplaw Place and turning in the direction of Overtown at 11.19pm.

The original CCTV tapes from Caplaw Tower were viewed in the course of the Inquiry. The time frame concentrated on was between 7pm and 9.15pm on 4th November 1998. The footage was not of the clearest quality, however there was no sign of Ronnie or Andrew Coulter leaving via the front door of Caplaw Tower between those times.

The evidence was not all adverse to Mrs Bryce on this point.

Alexandra Tierney consistently said that Ronnie Coulter came to her house that night and had a conversation with her about a dog. In her police statement she said that he arrived about 10pm and stayed for 10 or 15 minutes. She gave the same time of arrival when precognosced on 15th December 1998 and in her evidence in the first trial she said that he arrived "roughly about half past 10, 11 o'clock, maybe a wee bit later" and stayed for "Half an hour, an hour or something like that". Her timings were, however, suspect because she said that she was ill and had been asleep when Ronnie arrived.

With hindsight there was potentially more significant evidence on precognition from two witnesses who saw Andrew Coulter outside Caplaw Tower between 7pm and 11.18 pm that night. Mary Drummond said that she was with Andrew Coulter and Donna Campbell in Caplaw Place throughout the period from about 9 to 9.45pm when Andrew Coulter was trying to sell a cooker. A second witness, Arthur Weir, said that he saw Andrew Coulter in the company of Donna Campbell and Corrine Chambers in Linghope Place at about 9.45 pm. and that he walked back with him to Andrew's flat (in Caplaw Tower) at about 10 pm. Unfortunately both of these witnesses were deleted from the list of witnesses for the first trial when the indictment was being revised by Mrs Burns and Mr MacDonald because they appeared "unnecessary to the prosecution of Ronnie Coulter". As a result of the deletion of these witnesses from the list cited for the first trial the police evidence relating to the CCTV videos (which was highly damaging to the reliability of Mrs Bryce as a witness) went substantially unchallenged.

The attack on Mr Chhokar

Surjit Chhokar left the restaurant in Bellshill at between 11.10pm and 11.12pm and he drove into Garrion Street at between 11.30pm and 11.35pm and parked his Ford Orion car outside Mrs Bryce's home. She was standing at the fire in her living room and she saw him as he got out of his car and closed the door. He was carrying a curry carry out and a "ginger" bottle and smiled at her as he walked towards the gate.

Mrs Bryce began to walk towards the living room door and when she heard Mr Chhokar scream she ran back to the window. She looked out and saw Ronnie Coulter using his arms to hold Mr Chhokar's right upper arm and David Montgomery holding his left upper arm in the same fashion. Andrew Coulter was in the middle and he was gripping Mr Chhokar's jacket. She described them as running and pushing Mr Chhokar, who was facing them, past his car and then across the street at an angle to a fence opposite to where a white glazier's van was parked.

She ran to her door (her flat is on the ground floor) and on the way she lifted a "ginger" bottle, which she exchanged for a spade as she made her way through the outer door. She ran across the street towards the men who were then on the opposite side and a short distance along from her flat. As she began to cross she shouted at them "You fucking bastards, leave him a fucking lone." When she ran out Mr Chhokar appeared to be attempting to close his arms across his body and Ronnie Coulter and David Montgomery were trying to keep them apart.

She shouted at them and David Montgomery bolted and Andrew Coulter stepped back and she saw Ronnie Coulter, who was at his right side, swing something at Mr Chhokar. She was unable to say what it was but it appeared to her to be flexible and about a foot long and she described him as swinging it in an under arm action using his right arm. After he had done this Ronnie and Andrew Coulter ran off together towards the top of the street and as they did so Mrs Bryce shouted "Andrew Coulter I am getting the fucking polis for you." She said that Andrew turned round and looked at her.

At this time Mr Chhokar was making his way back across the street in the direction of his car and as he came up to Mrs Bryce he said, "They've stabbed me". He was wearing a woollen jacket, which was open, and a white shirt and Mrs Bryce could not see any sign of blood. He went over to his car and put his hands on the bonnet and then he put his head on his hands and she heard a noise she described as like a tap going on full. She said that she just looked at him and as she put it "all the blood was running out of him." After a few seconds he collapsed to the ground and she ran to obtain assistance.

Around 11.30 pm, Mr J.P. Fitzgerald, a gas technician with North Lanarkshire Council, was sitting in his van in Garrion Street completing some paperwork after dealing with a call out. When he had finished he drove his van down Garrion Street and as he did so he noticed the shadows of two men standing to his right just past an Orion car and beside a caravan. There was a caravan parked in the driveway of the block where Mrs Bryce lived. He drove on without paying any attention to them and as he did so he received another call and he stopped his van and wrote out the details of this new call. He set off again down Garrion Street and when he reached Gilburn Street he discovered that it is a cul-de-sac. He had to turn his van to get back to the main road along Garrion Street. As he was turning the van he noticed two people running in Gilburn Street.

When he drove back into Garrion Street he saw a man falling about and staggering and then fall and then attempt to get up again. He thought that the man was drunk so he decided to drive up on the kerb to pass by him. At this point a woman now known to him as Mrs Bryce hit the window of his van and said, "Can you help me he has been stabbed"? She was very distressed and initially she appeared to think that Mr Fitzgerald had been involved in the attack. He called for an ambulance and the police on his radio and gave first aid to Mr Chhokar.

Thomas Muir did not give evidence at the trial of Ronnie Coulter but he did give evidence at the second trial. He lived in an upstairs flat in Garrion Street in the block beside where Mrs Bryce lived and nearer Main Street. He was in his living room when he heard people running up and down the street and somebody screaming. On looking out of the window he saw two men passing the white glazier's van parked outside his flat. They came from the front of the van, which was facing away from Main Street, and both were running. One of them who was wearing a baseball cap struck the other once on the shoulder from behind with what appeared to be a stick. The stick was about eighteen inches (forty-five centimetres) in length. The attacker then turned and ran back up the street in the direction of Main Street. The victim of the assault ran on for two or three yards and then stopped and leaned against a parked car. Mr Muir then saw Mrs Bryce run across the road and he heard her scream and at this point other neighbours came out of their houses.

Anthony MacAvoy, who is a glazier, lived at 14 Garrion Street and he went to bed earlier in the evening. His partner woke him about 11.25pm and he went to the window where he saw Mr Fitzgerald running to his van and back to the kerb side again. Mr MacAvoy dressed and went out and he found Mr Chhokar lying on the pavement. He ran back into his house to telephone the police and when he came out again he asked Mr Chhokar "who the fuck did this?" Mr Chhokar moaned and seemed to die there and then. When he asked Mrs Bryce who had done it she said "that wee bastard Coulter" and added that they had been hanging about here all night. Mr MacAvoy said that he noticed trickles of blood from his gate down towards Mrs Bryce's gate and it appeared to him as though Mr Chhokar had been stabbed outside his house and had tried to make it to Mrs Bryce's house. He also noticed a bottle of Irn Bru sitting on the pavement.

The police and ambulance service arrive

At 11.34pm the emergency services were contacted and two police officers (Constables MacLean and Rattray), who were on mobile patrol in the vicinity, reached the scene before the ambulance got there at 11.43pm. Mr Chhokar was unconscious when they arrived but they were able to speak to Mrs Bryce who told them that three men were responsible for Mr Chhokar's injuries and she named Andrew Coulter as one of them. She added, "he and the other two had been stoatin about all night". Mrs Bryce did not name the other two men. CID officers were called to the scene to commence investigations.

Mr Chhokar was placed in the ambulance and taken to Law Hospital and Elizabeth Bryce and Constable Rattray accompanied him there. En route the constable noted a brief statement from Mrs Bryce in which she again named Andrew Coulter as one of those responsible and stated that the incident was caused by an argument over a giro cheque.

On 5 November at seven minutes after midnight Mr Chhokar was pronounced dead by Dr Elizabeth Clinton at Law Hospital.

The CCTV shows David Montgomery returning in his car to Caplaw Place at 11.39pm and Andrew Coulter entering Caplaw Tower at 11.39pm. A few seconds after midnight Ronnie Coulter is seen walking into Caplaw Tower. The police timed the journey on foot, by the most direct route, from Garrion Street to Caplaw Tower as taking 18 minutes.

CHAPTER 5

The police inquiry and detention of the three accused

The report of a sudden death

The post-mortem was performed at the City Mortuary, Glasgow, beginning about 1pm on 5 November 199818. Drs. McFarlane and Black carried it out in the presence of police officers and staff from the Procurator Fiscal's Office, including Mr Ian McCann.

The police submitted a report to the Regional Procurator Fiscal at Hamilton by e-mail on 6 November at about 9.15 am summarising the circumstances of the death. This was a standard report submitted by the police in connection with a sudden death and would probably have gone to the deaths unit of the fiscal's office. It is not known by whom that report was received because it was rapidly overtaken by events.

Andrew Coulter

The police had launched a murder inquiry and they had searched unsuccessfully for Andrew Coulter. On the evening of 5 November 1998 at 5.55pm Andrew Coulter presented himself at Wishaw Police Office in the company of his solicitor Mr Michael Gallagher. He was formally detained by the police at 6.02pm under section 14 of the Criminal Procedure (Scotland) Act 1995.19 He was interviewed between 10 pm and two minutes past midnight and at the conclusion of that interview he was arrested on a charge of murder.

The difference between the time when Andrew Coulter first presented himself at the police station and when he was actually detained by the police was significant. He could only be detained by the police for up to 6 hours and then either arrested or released. If detention was taken to have commenced when Andrew Coulter arrived at the police station his detention would have ended before midnight on Thursday 5 November 1998 with the consequence that he had to appear in Court on Friday 6 November. However, if detention was delayed until 6.02pm on Thursday 5 November it would have ended two minutes into Friday 6 November. The next lawful day after Friday is Monday so he could have been held in police custody over the weekend and brought to Court on Monday 9 November.

Andrew Coulter's solicitor, Mr Gallagher, was alive to this point and at about 10 am on Friday 6 November he spoke to the then Regional Procurator Fiscal, Mr Frank Crowe, to ensure that Andrew Coulter appeared in Court that day. Mr Crowe made inquiries and to err on the side of caution he instructed that arrangements be made for him to appear in Court that day. The police were required to submit a report and, after that report was received, the marking unit of the Procurator Fiscal's office in Hamilton prepared a petition. On the afternoon of Friday 6 November Andrew Coulter appeared on petition at Hamilton Sheriff Court when he was remanded in custody for seven days for further examination on a charge of murder. He was next due to appear in Court on 13 November.

Police inquiries were continuing on 6 November and in the course of that day and Saturday 7 November the police obtained evidence from witnesses naming Ronnie Coulter and David Montgomery as the two other persons involved in the incident. That evidence came from witnesses other than Elizabeth Bryce because she did not name these two individuals until interviewed by the police for a fourth time on Sunday 8 November.

David Montgomery's Ford Ka

In the afternoon of Saturday 7 November 1998 the Ford Ka owned by David Montgomery (and used to transport all three accused to Garrion Street on 4 November 1998) was valeted at "Inside and Out" car valet service in Motherwell.

Some time after 2pm that day David Montgomery approached the business manager at Reg Vardy Car Sales in Motherwell and stated that he could no longer afford the payments on his car as he had lost his job four weeks earlier. He indicated that his car was a Ford Ka and asked if he could return it to the company. He was told that Reg Vardy would not take possession of the car and that he should try to arrange to sell the car privately or contact the finance company to arrange settlement.

Montgomery left Reg Vardy and was seen by the business manager to have an angry discussion with a male in a baseball cap, before driving away.

When he gave evidence at his trial Montgomery stated that he had purchased the Ford Ka in February 1998 with the aid of a finance package costing him £280 per month to repay. He told that court that he had been made redundant from his job as a metal fabricator in October 1998, having been in continuous employment for the previous 5 years. This redundancy resulted in him being unable to maintain payments on the car and according to his evidence, he attempted both before and after the murder of Mr Chhokar to return the car to the dealership where he had bought it, on each occasion providing his true particulars to the sales staff.

The car was examined and there was no forensic evidence to link it to the murder.

Detention of David Montgomery

Later on the afternoon of Saturday 7 November 1998 the police detained David Montgomery. He was interviewed by the police between about 7pm and 10.25pm that night and eventually made limited admissions to involvement in the incident, though he claimed not to have touched Mr Chhokar. He confirmed that the others present were Andrew and Ronnie Coulter and spoke about Andrew Coulter using a bat but denied any knowledge of a knife. The police prepared a further report for the Procurator Fiscal outlining the case against all three accused. The police asked for the remand of David Montgomery on petition and for a warrant for the arrest of Ronnie Coulter, who was still at large. The report was submitted to the Procurator Fiscal's Office on Monday 9 November and David Montgomery appeared on petition that day and was remanded in custody.

Ronnie Coulter

A warrant was not, in the event, required for the arrest of Ronnie Coulter because he voluntarily attended the police station shortly after 2.00pm on Monday 9 November 1998 in the company of his solicitor and was detained. He was interviewed between about 3.20pm and 8.00pm but on legal advice refused to answer any significant question. A supplementary police report was submitted to the Fiscal on 10 November advising of the detention of Ronnie Coulter and he appeared in Court on petition on 10 November and was remanded in custody.

Identification parades

Identification parades were held on 11 November. David Montgomery and Andrew Coulter appeared on the same parade beginning at 2.30pm.20 The identification parade for Ronnie began at 3.34pm.21

CHAPTER 6

The three day report

The decision whether or not to place an accused on petition and to seek his remand in custody for the initial period of 7 days is taken by the procurator fiscal's office. At the end of that period of 7 days there is a second court appearance to determine whether the accused should be fully committed for trial and, if so, whether he should be remanded in custody or released on bail pending trial. In 1998 on appearance on a charge of murder, bail could only be granted by the Lord Advocate or subsequently by the High Court and in either case only in exceptional circumstances22.

Three day reports

The decision whether or not to seek to have the accused fully committed in murder is one that only Crown counsel can take. To enable Crown counsel to take that decision the procurator fiscal is required to submit to Crown Office a report known as a "three day report" which, as the name implies, should be submitted within three days of the accused appearing on petition.

The three-day report is prepared by the fiscal based on the police report and witness statements obtained by the police. Drawing on these sources the fiscal summarises the circumstances of the incident and the evidence against the accused. In particular the fiscal is expected to identify the sources of evidence which provide a corroborated case against the accused because Crown counsel will only authorise full committal if satisfied that there is a corroborated case against the accused. Crown counsel take their decision based on the fiscal's report and do not study the police report or the witness statements. A report to Crown Office is required as early as three days to given Crown counsel time to consider the case and, if necessary, to instruct further inquiries before deciding on full committal.

This case did not proceed in accordance with normal practice. A report should have been submitted within three days of Andrew Coulter appearing on Petition on 6 November 1998. The three-day report was not submitted until the afternoon of 12 November. The delay was caused by the complication of the intervening detentions of David Montgomery and Ronnie Coulter.

The fact that David Montgomery and Ronnie Coulter appeared in Court on 9 and 10 November resulted in the papers for the case being required in Court on each of these days and accordingly they could not be given to a fiscal to prepare the report. It was not until Wednesday 11 November that the papers were given to Mr Ian McCann to prepare it.

The report that Mr McCann prepared related to all three accused as by then they had all been remanded in custody on the charge of murder.

The baton is found

Inquiries were continuing on 11 November. That morning Andrew Coulter's flat at 17 Caplaw Tower, Wishaw was searched again by officers from Strathclyde Police and a wooden baton was recovered in the dust bag of a Hoover stored in the hall cupboard. There was also a baseball cap in the bag23.

This baton is made from a wooden chair leg. One end has been hollowed out and filled with lead and at the other a hole has been drilled and a hand strap fitted. It measures 33 centimetres in length and weighs 0.524 kilograms. Where it has been hollowed out and the lead inserted the wood has split and this became visible when the black tape covering almost the entire length of the baton was removed.

In the afternoon the police held identification parades. Though they were continuing to make inquiries they had largely completed the task of interviewing witnesses and the witness statements that they took substantially reflect the evidence that was ultimately to be led in the two trials.

Mr McCann prepares the three-day report

Mr McCann is a Procurator Fiscal Depute with about 11 years experience. He was working in the deaths unit and would not normally have had responsibility for the preparation of a three-day report because that is the task of the marking unit. The papers were given to him because the staff in the marking unit was fully occupied on other duties. He had the requisite experience to prepare a report and the report he prepared gives a concise account of the available evidence. Although there was implicit criticism of this report at the time, I have considered the Precognition and I am satisfied that such criticism is unwarranted.

The police provided Mr McCann with copies of the witness statements they had taken. He discussed the case with one of the investigating police officers and proceeded to prepare the three-day report based on the police report and his own analysis of the witness statements. He worked on the papers all of Wednesday 11 November and took them home that night to complete his report. In it he refers to the identification parade held in the course of that day. He sent his dictated report for typing the following morning and it was faxed to Crown Office at about 4.27pm on Thursday 12 November. The report is marginally in excess of 6 pages long and concludes with a recommendation that all three accused be fully committed on the charge of murder.24 The cover sheet highlights the fact that Andrew Coulter was due to appear in Court at 2 p.m. on Friday 13 November and that instructions were required urgently.

Consideration of the report by the High Court unit

In Crown Office three-day reports are normally considered first by the head of the High Court unit, a senior member of the permanent staff of procurators fiscal assigned to Crown Office. The head of the High Court unit marks a recommendation on the report and it then passes to one of the advocate deputes on duty in the office. It is the duty advocate depute who takes the decision whether or not to authorise full committal.

In November 1998 the head of the High Court unit was Mr W.J. Gallacher. He probably saw the three-day report on the Friday morning. Based on the presentation of the evidence in the report Mr Gallacher made a manuscript note on the cover sheet to the effect that there was no evidence that Andrew Coulter and David Montgomery knew that Ronnie Coulter had a knife nor any suggestion that they talked of using it. In the absence of such evidence he did not agree that there was sufficient to fully commit anyone other than Ronnie Coulter and he thought the case against him was a bit tenuous.

Consideration of the report by the advocate depute

The report and cover sheet were passed to the Advocate Depute's room where they were considered by a duty Advocate Depute, Mr Bell Q.C. He was annoyed that the report was being submitted on the day scheduled for full committal. He discussed the report with Mr Gallacher and to the best of his recollection he did not agree with him. Mr Bell instructed that Mr McCann prepare a supplementary report addressing Mr Gallacher's concern. Mr Gallacher conveyed this instruction to Mr McCann by telephone at around 10.00am. Mr McCann prepared a two page, typed supplementary report formulating an argument that there was sufficient evidence against each of the three accused on the basis of concert. His supplementary report includes reference to the fact that the baton had been found and he gives a description of it consistent with it being a potentially lethal weapon25. The supplementary report was faxed to Crown Office about noon.

Mr Gallacher remained unpersuaded that there was sufficient evidence against Andrew Coulter and David Montgomery for a charge of murder. He wrote a manuscript note on the cover sheet recommending that only Ronnie Coulter be fully committed. In this note he said that the intention to use fists or a baton or even to gouge eyes is clearly indicative of violence and serious violence but a totally separate lethal weapon was used. He recommended that Andrew Coulter and David Montgomery be released in the meantime and their positions be kept under review in the Precognition.

Was a Law Officer consulted?

Mr Bell believes that when he considered the supplementary report he did not agree with Mr Gallacher and thought that all three should be fully committed. He suggested to Mr Gallacher that they should discuss it with a Law Officer and they saw the Solicitor General, then Mr Colin Boyd, in the same building.

It would be unusual to discuss a three-day report with a Law Officer and there is no written record of such a meeting. Mr Gallacher has no recollection of a meeting with a Law Officer about the three day report and if one had taken place he would have noted that fact on the case papers.

Mr Boyd has no recollection of such a meeting. His diary shows that he left London, on a flight to Edinburgh, at 12.40 pm on 13 November and assuming that it was on time he would have reached Crown Office at about 2.30pm. He could not have been consulted before the instruction was faxed at 12.47pm for the hearing at 2pm that afternoon.

On 19 March 1999 when Mr Boyd wrote on the case for the then Lord Advocate he said in his note that he had not studied the three-day report. If there had been a meeting about the three-day report in November 1998 he believes that he would have referred to it in his note to the Lord Advocate.

The Solicitor General's absence in London on the morning of 13th November coupled with his lack of any recollection of a discussion about the three day report leads me to the conclusion that Mr Bell must be mistaken. In fairness to Mr Bell he said that to the best of his recollection this was the occasion on which he disagreed with Mr Gallacher and it may well be that he is confusing it with some other case when he did consult the Solicitor General.

I am satisfied that in accordance with normal practice a Law Officer was not consulted at the stage of the three day report.

Crown counsel's instruction

The only record of Mr Bell's consideration of the papers is a formal manuscript note written and initialled by him on the cover sheet of the supplementary report. As written it reads: "CC agree FC of Ronnie Coulter"; meaning "Crown Counsel agree Full Committal of Ronnie Coulter". That was in effect an instruction by Mr Bell, as the duty Advocate Depute, to fully commit only Ronnie Coulter on a charge of murder and to liberate the other two accused. Mr Gallacher arranged for this instruction to be issued to Mr McCann. The letter containing the instruction was faxed to Mr McCann at 12.47pm and was in these terms:

"Crown Counsel instruct that Ronnie Coulter only be fully committed on a charge of murder.

In respect of Marshall [Andrew Coulter] and Montgomery they should meantime be released but their positions should be kept under review in the course of precognition. Should it become apparent that there is sufficient evidence against them please re-report on that issue forthwith."

Full Committal of Ronnie Coulter

Mr McCann received and acted upon the instruction. Andrew Coulter and David Montgomery were liberated without having been fully committed and, on 17 November, Ronnie Coulter appeared in Court and was fully committed and remanded in custody for trial.

Time began to run and the indictment had to be served no later than 4 February 1999 and his trial had to begin by 6 March 1999.

The continuing influence of the decision taken at the three day report stage

Mr McCann, Mr Gallacher and Mr Bell play no further part in the case. No explanation was given by Crown Office to the Procurator Fiscal of the reasons for rejecting Mr McCann's analysis of the case against the two liberated accused and no record exists of the discussions between Mr Bell and Mr Gallacher. Though the instruction dated 13 November issued by Crown Office to Mr McCann had said that the positions of Andrew Coulter and Montgomery should be kept under review it is clear that the decision taken at the three day report stage fashioned the mould from which the case never escaped. This was as a result of a combination of two factors:

1. No new witnesses emerged during the subsequent investigation of the case by the Procurator Fiscal. Those who decided who was to be prosecuted at the first trial were influenced by the fact that two very experienced and senior criminal practitioners (Mr Gallacher and Mr Bell) had apparently decided, with reference to essentially the same evidence, that there was insufficient against Andrew Coulter and Montgomery.

2. Had Andrew Coulter and David Montgomery been fully committed the case would have had to have been reported to a Law Officer, for authority at the stage of final preparation of the indictment, to terminate or postpone the prosecution of them. Where a case is being reported to a Law Officer in such circumstances the practice is for an advocate depute to read the papers in sufficient detail to prepare a summary report with a personal recommendation for consideration and approval by the Law Officers. Thereafter the papers will be considered by one of the Law Officers with the benefit of the advocate depute's preliminary advice. Had this case been one that required to be reported to the Law Officers it is probable that it would have received more detailed scrutiny by an advocate depute than it in fact did receive and there would have been the added cross-check of consideration by a Law Officer. The fact that Andrew Coulter and Montgomery were not fully committed had the result that the decision to indict only Ronnie Coulter for the first trial could be taken by an advocate depute and consequently the case did not benefit from scrutiny by a Law Officer until after Ronnie Coulter was acquitted at the conclusion of the first trial.

CHAPTER 7

Preparation of the Precognition

Precognitions

After Ronnie Coulter was fully committed on 17 November the case papers passed to the solemn unit in the Hamilton Office. That unit has responsibility for preparing solemn cases, that is serious criminal cases, to be tried by judge and jury. It has to take statements from the witnesses for the trial. Decisions taken down to and including full committal are based on the statements obtained from the witnesses by the police. Prosecutions in the High Court and before a jury in the sheriff court are, however, based on "precognitions" which are written statements of the evidence a witness is expected to give.

The preparation of the precognition is central to the prosecution of serious crimes in Scotland and is primarily the means by which the Lord Advocate ensures that prosecutions are conducted by his staff in the public interest independently of the police.

The person preparing the "precognition" can be either a legally qualified procurator fiscal depute or a non-legally qualified member of staff trained for the purpose (a precognition officer). The process of obtaining these statements is known as "precognoscing" the witnesses. The person who is precognoscing the case is known as the "precognoscer".

The precognoscer reads the existing papers (including the three day report, the police reports and the police witness statements) and selects from the list of witnesses identified by the police those who may be significant in any trial. Arrangements are made for the selected witnesses to be seen by the precognoscer. The precognoscer goes over with each witness the evidence that the witness can provide and prepares for each witness a separate detailed written account (i.e. "a precognition") of the evidence that the witness will give. The precognoscer will use the police statements of all the witnesses as a guide to the lines of inquiry to pursue with the witnesses but the precognition is not intended to be a copy of the police statement. The precognition is unsigned and not binding on the witness:

"In a precognition you cannot be sure that you are getting what the potential witness has to say in a pure and undefiled form. It is filtered through the mind of another, whose job it is to put what he thinks the witness means into a form suitable for use in judicial proceedings. This process tends to colour the result. Precognoscers as a rule appear to be gifted with a measure of optimism which no amount of disillusion can damp"26

The Crown Precognition

In addition to obtaining precognitions from witnesses the precognoscer gathers the scientific reports and the various productions (both documents and physical objects) in the case. Having collected all the material relevant to the case the precognoscer prepares a summary of the case to be used by Crown Office in taking decisions with a view to prosecution of the case and by the prosecutor in preparing for the trial.

The summary is in three sections. The first section is a narrative of the background circumstances of the incident. The second section is a brief analysis of the evidence indicating the key witness whose evidence supports a prosecution. Finally the precognoscer formulates a recommendation on the central questions, which are whether the accused should be prosecuted and, if so, on what charge and in which forum.

The summary, individual witness precognitions, scientific reports and documentary productions are bound together in a series of volumes and the whole collection of papers is known as the "Crown Precognition" (Precognition for short). Physical objects that are to be relied on in the trial, such as knives and blood samples, cannot be reproduced in the Precognition but one of the precognoscer's tasks is to ensure that the witnesses who can give evidence about any physical object important to the case have referred to the object in their precognitions.

The Crown Precognition supersedes the police statements and effectively becomes the master text by reference to which decisions are taken on the indictment of the case and on the conduct of the trial itself.

The allocation of the Precognition

In November 1998 the head of the solemn unit in the Hamilton Office was Mrs Maureen Sinclair, a Principal Depute with over 20 years experience. She had a team of five legally qualified procurator fiscal deputes (two of whom were part-time) and three precognition officers. The unit was very busy at the time with a number of custody cases requiring to be precognosced.

One of the five procurator fiscal deputes had been seconded to help with a precognition backlog and already had a murder case and a further custody case to precognosce. Mrs Sinclair was aware that the case involved the application of the legal principle of concert rendering it less suited to some of the unqualified precognition officers. That consideration, allied to the fact that all the members of the unit were generally busy, led her to allocate the case to Mr Alan MacDonald. Mrs Sinclair was aware of his lack of experience. He had been given no training as a precognoscer since he joined the service but he had a good reputation and she had no one else available who was suitable. She may not have allocated that case to Mr MacDonald (who had not completed the precognition of any High Court case) had an alternative been available.

The case was allocated to Mr MacDonald on Friday 20 November 199827. Prior to allocating the case to him Mrs Sinclair read the three-day report and the police report but she did not read the police witness statements. Mrs Sinclair wrote a note on the sheet allocating the case to Mr MacDonald:

"Please precognosce. I will discuss this case with you. Thereafter if you would keep me posted as to what's going on. You must consider the case against all 3 accused i.e. keep an open mind. See Crown Counsel's letter dated 13.11.98. To CO by 15.1.99"

Mrs Sinclair had a general discussion with Mr MacDonald when allocating the case to him and she then left him to his own devices with a standing invitation to discuss the case with her as need arose. He was given the three-day report, the supplementary report, the police reports and the full police statements. He was told by Mrs Sinclair to get the major incident property register so that he could trace everything recovered by the police that may be of evidential value. On that day he wrote to the police and to the forensic laboratory to obtain the productions and on the following Monday, 23 November, he wrote to the pathologists to obtain the written report of the post-mortem.

The fiscal depute prepares the Precognition

Mr MacDonald knew that the Precognition had to be submitted to Crown Office by Friday 15 January 1999 (though this was subsequently extended to Monday 18 January 1999). Between 20 November and 15 January he had to attend to various duties in addition to precognoscing this case. He was working on a rota of two weeks on and two weeks off i.e. he was assigned to the prosecution of sheriff and jury trials for two weeks with the subsequent two weeks for all other duties.

He conducted trials in the week commencing 23 November and on 3, 7-9 and 11 December 1998 and 5 - 8 and 15 January 1999. Allowing for annual leave he only had 12 days allocated to him for all of his precognition work in December 1998 (1, 2, 4 and 10, 14 - 18 and 21 and 22) and 3 days in January 1999 (11-14). Given the submission date of 15 January 1999 the 3 days in January were of no practical value and accordingly Mr MacDonald had to work within the 12 available days in December. He allocated 14-18 and 21 and 22 December as the period during which he would precognosce this case. He cited witnesses to attend for precognition during that period.

The police continued to submit reports to the Procurator Fiscal's Office. On 20 November 1998 the police submitted a report summarising some information that the fiscal's office had been given verbally before, including the circumstances in which the baton had been found and detailing the police examination of videos taken on 4 November 1998 at Caplaw Tower, where the Coulters lived.

Finding of knife set and fingerprint evidence

As a result of confidential information provided to the officer in charge of the murder inquiry on 9 November 1998 a bag containing cardboard, 2 bags, a box and knives, 2 T-shirts, 2 shoes, a pair of jeans, a jacket and a pair of trousers was recovered from a grassed area near to a dirt track leading from Aitkenhead Road, Birkenshaw.

One knife was missing from the boxed set. The missing knife was of a size that could have caused the wounds on Mr Chhokar and is presumed to have been the murder weapon.

Officers from Strathclyde Police Identification Bureau examined the box containing the knives and the knives themselves on 17 November 1998. A thumb impression belonging to Ronnie Coulter was found on the inside surface of the box and a finger impression of Andrew Coulter was found on the blade of a large knife from the box. These impressions could not be dated.

On 1 December the police reported this new information28 and on 22 December that information was confirmed in a formal written report29. All of that information was made available to Mr MacDonald.

Precognition of witnesses

Mr MacDonald precognosced the witnesses as he had intended between 14-22 December 1998. He took manuscript notes of his meetings with the witnesses and then dictated written precognitions. He worked on the papers while on holiday over Christmas, in addition to preparing for a sensitive child abuse prosecution that he was to conduct in the week beginning 5 January 1999.

He was prosecuting solemn cases between 5-8 January and had to finalise the preparation of the Precognition during that same week in order to meet the revised submission date of Monday 18 January. To prepare the summary for the Precognition (including the narrative, analysis and recommendations) he had to get up early and he worked on the Precognition at home from 5am before going to Court.

The fiscal's recommendation

In the analysis section of the Precognition Mr MacDonald considered the case against each accused proceeding (correctly) on the basis that proof of a charge of murder against each of them would depend on the application of the law of concert to the available evidence.

In his analysis of the case against each of the three accused it is plain that he was partly influenced by the decision of the Crown Office at the stage of the three day report. Thus he begins his consideration of the case against Andrew Coulter by observing that "Evidentially, the case against Andrew Coulter is not changed since he was liberated", making a virtually identical observation at the start of his consideration of Montgomery.

He concluded that there was a sufficiency of evidence for a charge of murder against only Ronnie Coulter. His view was that there was a sufficiency of evidence against Andrew Coulter only for a charge of assault and he doubted that there was a sufficiency of evidence for any charge against Montgomery.

Proceeding from these conclusions he listed four options in the recommendations section of the Precognition. When the case was first reported to Crown Office these options were on a page numbered 52 and after further inquiries were carried out and the Precognition re-submitted for the first trial that page was re-numbered 57 but no change was made to the options. The options listed by Mr MacDonald were:

a) Proceed against Ronnie Coulter on the charge of murder and wait for the outcome before deciding whether proceedings should be taken against Andrew Coulter and David Montgomery.

b) Proceed against Ronnie Coulter on the charge of murder using Andrew Coulter and David Montgomery as witnesses.

c) Proceed against Ronnie Coulter on the charge of murder and Andrew Coulter on the charge of assault and take no proceedings meantime against David Montgomery until the outcome of the case.

d) Proceed against Ronnie Coulter on the charge of murder, Andrew Coulter on a charge of assault and use David Montgomery as a witness against both.

He also observed the following:

"There is a definite possibility that nobody will be convicted of this offence. The advantage of (d) is that David Montgomery can provide evidence that Andrew Coulter struck the deceased with a bat and that Ronnie was the main assailant "punching" and "jist getting intae him" until Elizabeth Bryce appeared and they all ran off. It strengthens Elizabeth Bryce's identification and the inferences that can be drawn from her evidence. However, David Montgomery's evidence would still not provide sufficient evidence to proceed against Andrew Coulter on a charge of murder.

The disadvantage of option (d) is that David Montgomery's evidence contradicts the evidence of Elizabeth Bryce in a material respect and may serve only to raise doubts as to her credibility. The other disadvantage is that David Montgomery would probably be incriminated by Ronnie Coulter and Andrew Coulter."

Having canvassed the options he concluded with this recommendation:

"My recommendation would be to proceed on the basis of option (a) and to review the case against Andrew Coulter and David Montgomery at the end of the case."

The counter-signer

Prior to submission to Crown Office a Precognition should be read in full by a more senior procurator fiscal as a cross-check and this fiscal counter-signs the Precognition. In this case Mrs Sinclair was the counter-signing fiscal. Some papers came to her during the afternoon of Friday 15 January 1999 while the remainder of the precognition was being typed. She could only read what was available. She read the narrative, analysis and the recommendations and the case law referred to, in the space of a couple of hours. She did not re-read the three-day report.

The counter-signer's recommendation

On the basis of this limited reading of the Precognition Mrs Sinclair wrote a tentative note disagreeing with Mr MacDonald's recommendation. She did not talk to Mr MacDonald before writing her note. In it she said:

"I would suggest that there is a very thin case against Andrew Coulter. He expressed an intention to assault the victim with a baseball bat, which in my view is a lethal weapon. He admits to assaulting the victim with a baseball bat. In addition he too must have seen the injuries inflicted on the deceased. He leaves the victim at virtually the same time as Ronnie. In addition he has incised wounds on his hands which are apparently approximately 2 days old. He says he got these working at a slaughter house. The information we have at the moment discloses that Andrew Coulter is unemployed. Further investigation and precognition of the police surgeon would be required if Crown Counsel agree with me.

I think Andrew Coulter's position can be distinguished from the Hoy case. In Hoy the court held that animosity between the deceased and the accused could not be corroborated. In this case we have Andrew Coulter expressing an intention to assault the victim with a baseball bat (lethal weapon) and indeed admitting to doing this."

Because of the time constraints, Mrs Sinclair could not have read the entire Precognition if the extended submission date of the following Monday was to be met.

Though this was contrary to recommended practice in the Book of Regulations this is common in custody cases when fiscal's offices are attempting to meet Crown Office target submission dates.

In any event, as will be suggested later in this report, her recommendation was along the correct lines.

CHAPTER 8

Indictment of the case

The incompleteness of the Precognition

The Precognition was sent to Crown Office with a covering letter on Monday 18 January 199930 although inquiries were incomplete.

Forensic examination of items of clothing and blood samples taken at the scene was still continuing. A draft forensic report was faxed to Mr MacDonald on 12 January 1999 and on that day he discussed that report with a forensic scientist, Mr Davidson. The report disclosed that blood had been found on clothing worn by the accused and samples had been sent for DNA analysis. The results of these analyses were the subject of a verbal report to Mr MacDonald on 15 January but further investigations were being carried out on a pair of jeans belonging to Andrew Coulter31. On 18 January 1999 Mr MacDonald formally instructed a further forensic analysis of the bloodstains32.

Mrs Sinclair's counter-signing note highlights the fact that a chapter of evidence about injuries to the hands of Andrew Coulter had not been followed up by Mr MacDonald. Andrew Coulter had cuts to his hands, which could have been consistent with contact with a knife, but at interview he had told the police that he had suffered these injuries while working in a slaughter-house. That explanation had not been investigated but, due to the possible significance attached to them by Mrs Sinclair, Mr MacDonald instructed the police on 18 January 1999 to investigate Andrew Coulter's employment history33.

The Precognition was submitted without the photographs taken during the post-mortem. This was a handicap given that part of the argument relating to sufficiency of evidence concerned the interpretation to be placed on the pattern and distribution of the injuries and whether an inference could be drawn from the injuries that the knife must have been openly on display during the incident34.

The covering letter to Crown Office dated 18 January that accompanied the Precognition reported that the forensic investigations were ongoing but did not mention the inquiries that had been instructed in relation to Andrew Coulter's injuries.

Why the original version is no longer available

The Precognition and covering letter were received in Crown Office on 19 January 1999. The copy of the Precognition available to the Inquiry is one that was amended to incorporate work subsequently instructed (as will be explained) in preparation for the first trial and the edition of the Precognition originally submitted to Crown Office is no longer available. This is in accordance with normal practice.

The original version of a Precognition is not stored on computer and when any statement is revised (for example because of the results of further inquiries) it is normal practice to extract and destroy the superseded text and replace it with the revised text. There is no practice of highlighting changes.

The advocate depute considers the Precognition

All papers requiring the attention of an advocate depute are placed in boxes in the Advocate Deputes' room in Crown Office.

The Precognition and covering letter in this case were placed in the box as part of the routine marking workload without any special notice being given. Mr Sam Cathcart was the Advocate Depute who happened to pick out the papers from the box for consideration. He had considerable experience at the Criminal Bar and prior to this he had been a procurator fiscal depute for eleven years.

Mr Cathcart has no clear recollection now of his examination of the papers. His recollection is that he did not read the three-day report but he would definitely have read the summary (narrative of the facts) the conclusions and recommendations and may have read more than this. Given that in his view the evidence was fairly thin he believes that he would have read the precognition of Elizabeth Bryce and may have "speed read" the rest.

The advocate depute's instruction

His recollection is that he formed the opinion at the time that there was sufficient evidence to proceed on a charge of murder against one accused (Ronnie Coulter) and that there was no immediate problem with the other two accused as they were not remanded in custody. He took the view that the information was not sufficiently complete for him to give a final instruction to include or exclude any accused other than Ronnie Coulter. He was mindful of the fact that inquires were incomplete and that the fiscal in the High Court unit would have an opportunity to review the matter in the course of the week. He, accordingly, wrote an instruction on 19 January 1999 that left scope for the options to be given further consideration35. His instruction was:

"Please indict High Court.

This is extremely thin but I agree that there is just enough against Ronnie Coulter. Indicter should consider the alternatives on page 52 and discuss with Duty AD"

His reference to page 52 was a reference to the four options canvassed by Mr MacDonald in the recommendation section in the Precognition as originally paginated (see page 37 above)

Unfortunately this instruction does not record the intention that a final decision should be taken only when all available evidence had been gathered.

The indicter receives the papers

The papers passed from Mr Cathcart to the room of the head of the High Court unit. By now Mrs Janet Cameron had replaced Mr Gallacher in that position. The papers were placed alongside the other work for the week. Mr Cathcart did not discuss the case with anyone in the High Court unit and there was nothing on the papers to mark them out as having any particular complexity or requiring any special attention.

It was quite normal for there to be no communication between the marking advocate depute and the fiscals in the High Court unit to whom responsibility would pass to implement the instruction. It is similarly normal practice for the terms of the written instruction to be kept to the minimum.

On Thursday 21 January 1999 Mrs Susan Burns collected the papers and began work on them. She is a principal depute who, by coincidence, had worked in the Hamilton Office for six years before joining the High Court unit in November 1998.

Mrs Burns took the papers from the pile, rather than the case being allocated to her. It proved to be one of eight cases that she indicted that week. The deadline that she had to work to was that the indictment had to be put out for service by Wednesday 27 January 1999. She had looked at the papers by lunchtime and at first did not foresee any difficulty with the case. However, as she read the papers in detail that afternoon she realised that there were considerable difficulties.

The indicter's interpretation of the advocate depute's instruction

Fortunately she did not confine herself to Mr McDonald's four options on page 52 of the Precognition, which did not include indicting Andrew Coulter and David Montgomery for murder.

She interpreted Mr Cathcart's instruction as requiring her to give consideration to the sufficiency of evidence against Andrew Coulter and David Montgomery and to the possibility of including either of them in the indictment on a charge of murder. In any case where there were multiple accused she would give detailed consideration to the sufficiency of evidence against them all. She did not know that Mr Cathcart had been influenced by the fact that inquiries were incomplete and, accordingly, though she pursued some of the outstanding lines of inquiry she did not know that it was necessary to pursue all outstanding matters before a final decision was taken on the other accused. Mrs Burns worked on the papers in detail on Thursday 21 and Friday 22 January 1999. The opinion that she formed was that there was a sufficiency of evidence on a charge of murder against only Ronnie Coulter. In arriving at this conclusion she was influenced by a belief (grounded on the limited records in the Crown Office file) that this was consistent with the view formed by the experienced criminal practitioners who had considered the case before her: Mr Gallacher, Mr Bell and Mr Cathcart. She also discussed the case with the other principal deputes in the High Court unit who concurred in her assessment.

The indicter asks for further instructions

Because Mr Cathcart's instruction was not exhaustive Mrs Burns had to discuss the case with an advocate depute. She went to the Advocate Deputes' room on the afternoon of Friday 22 January 1999 and the advocate depute to whom she spoke was Mr Jamie Gilchrist. The two of them had a discussion about the case but Mr Gilchrist was not asked to read the papers. Mr Gilchrist was also new to the task as he had only taken up office as advocate depute towards the end of November 1998. It would appear that Mrs Burns and Mr Gilchrist were at cross-purposes during this discussion.

From Mrs Burns's perspective she went to speak to Mr Gilchrist looking for a decision on what to do with Andrew Coulter and David Montgomery. That decision would be in the nature of an instruction from Mr Gilchrist as an advocate depute. Having herself formed the view that only Ronnie Coulter should be indicted for murder and that the other two should be assessed at a later date she was looking for confirmation from Mr Gilchrist. She did not view indicting Andrew Coulter and David Montgomery on a reduced charge of assault as a viable option and accordingly she believes that the only thing that she would have discussed with Mr Gilchrist was indicting Andrew Coulter and David Montgomery for murder. She accepts that she would have made it clear that she did not consider there to be sufficient evidence to prove murder at that time. At that time her understanding was that if an advocate depute told her to do something or agreed with her recommendation then she could take that as an instruction. Mr Gilchrist agreed with her recommendation and she construed that agreement as an instruction.

Mr Gilchrist has very little recollection of this discussion. He did not understand that he was being asked to give a formal instruction. His understanding was that the decision had already been taken to indict only Ronnie Coulter for murder and that the discussion with him was for "information purposes only" to review whether Andrew Coulter and David Montgomery should be indicted for assault or final consideration of their cases deferred until after the first trial. He did not understand that he was being asked for an instruction as to whether Andrew Coulter or David Montgomery should be indicted for murder. Had he understood that he was being asked to do this he would have read the papers. As it happened, on the assumption that only Ronnie Coulter was to be indicted for murder, Mr Gilchrist's tactical assessment coincided with that of Mrs Burns: it would be better to defer a final decision until after Ronnie's trial, rather than to prosecute either of them on the lesser charge of assault on the same indictment as Ronnie.

After the discussion with Mr Gilchrist Mrs Burns wrote a file entry: "Discussed with Jamie Gilchrist. AC & DM to be considered after trial RC. SMB 22.1.99". "AC", "DM" and "RC" refer to Andrew Coulter, David Montgomery and Ronnie Coulter. "SMB" are Mrs Burns's initials. This file entry records Mrs Burns's understanding of the import of her discussion with Mr Gilchrist, which is that she construed his agreement with her as an instruction to proceed as she proposed. The file entry would not, however, normally be understood to be an instruction from Crown counsel because an instruction requires to be initialled by the advocate depute giving it. Mr Gilchrist did not initial the file entry and the absence of his initials squares with his understanding that though Mrs Burns had been discussing the case with him on an advisory basis he was not being asked for an instruction.

Absence of Crown counsel's instruction on indicting Andrew Coulter and David Montgomery

There was no further discussion with Crown counsel prior to the service of the indictment on Ronnie Coulter. Mrs Burns proceeded on the understanding that Mr Gilchrist had confirmed the instruction of Mr Cathcart that only Ronnie Coulter should be indicted for murder and that the position of the other two should be reviewed after his trial.

Whether Mrs Burns was correct or not in forming this understanding, the fact remains that the failure to indict Andrew Coulter and David Montgomery was not the subject of any considered decision by Crown counsel. Mr Cathcart had not intended to give a final instruction to that effect and, indeed, he had not done so. Mr Gilchrist did not understand that he was being asked to give such an instruction and consequently he did not study the papers and did not authorise the decision in the traditional manner by writing his initials on the file entry.

The shopping list letter

Following her discussion with Mr Gilchrist, Mrs Burns proceeded to carry out detailed consideration of the case in order to draft the indictment and to prepare the case for trial. On Monday 25 January 1999 she wrote an 11 page letter, known as a shopping list, to Mr MacDonald requiring him to carry out further investigations.36 These included re-precognoscing the crucial Crown witness, Mrs Bryce, because there was more detail in her police statement than in the precognition obtained from her by Mr MacDonald. Mr MacDonald was also instructed to re-precognosce the pathologists because their precognitions lacked detail.

The pathologists were in fact precognosced three times in this case. Mr MacDonald frankly acknowledges that he had difficulty precognoscing them. Due to inexperience he did not know the proper questions to ask them. This is unfortunate because one key factor in the case was whether the pattern of the injuries justified an inference that the knife must have been visible to all three accused during the attack. The pathologists had an important contribution to make to that line of evidence but Mr MacDonald did not initially know the questions to ask in order to elicit that contribution.

This shopping list letter also contained instructions to carry out further inquiries in relation to the case against Andrew Coulter (including precognoscing the police surgeon who had found the injuries on his hands) but these instructions were expressly in the context of the decision to defer proceedings against him until a later date. Coincidentally on 27 January Mr MacDonald received a police report dated 26 January relating to Andrew Coulter's employment history (a report that he had instructed on 18 January 1999 in light of Mrs Sinclair's views on the possibility of a sufficiency of evidence against that accused). It was not passed to Crown Office because Mr MacDonald considered it to be relevant to the possibility of a second trial against Andrew Coulter. In ignorance of the fact that information had already been gathered in this matter Crown Office gave instructions to the fiscal to investigate it again after the first trial37.

Additional forensic reports are received

While Crown Office was considering the case Mr MacDonald received additional written forensic reports. There was a written report dated 21 January 1999 relating to the examination of items of clothing and a written report dated 27 January 1999 on the DNA analysis of bloodstains discovered during the investigation. The forensic evidence did not advance the case against any of the accused. It is probable that Mrs Burns received a verbal report of the results of these tests but there is no record of the written reports being submitted to Crown Office and certainly the forensic reports relating to the examination of blood samples were not produced in evidence at either trial nor even listed among the papers made available to the Advocates Depute who conducted the two trials.

The indictment is sent for service

Mrs Burns, acting in conjunction with Mr MacDonald, adjusted the terms of the charge and revised the list of witnesses, productions and labels in order to finalise the indictment against Ronnie Coulter. The indictment was finalised and sent out for service on Wednesday 27 January 1999.

The charge against Ronnie Coulter reads;

"On 4 November 1998 at Garrion Street, Overtown, Wishaw you did, while acting with others, assault Surjit Singh Chhokar, 24 Garrion Street Overtown Wishaw, seize hold of his body, struggle with him, strike him on the body with a piece of wood and metal or similar instrument, strike him repeatedly on the body with a knife or similar instrument and you did murder him."

CHAPTER 9

The first Trial

Further inquiries

Mr MacDonald proceeded to attend to the various matters in the shopping list. In particular, on 28 January 1999 he reprecognosced the pathologists, Drs. McFarlane and Black. He also reprecognosced Elizabeth Bryce38. In accordance with normal practice, Mr MacDonald revised the Precognition to take into account the results of the further inquiries. He replaced the original precognitions of the witnesses McFarlane, Black and Bryce with the revised precognitions. He also removed some parts of the original narrative and analysis and substituted amended pages to reflect the additional information obtained. Mr MacDonald also wrote a letter dated 18 February 1999 reporting in brief terms on the steps that he had taken to comply with the shopping list39. On the same date he also wrote a letter to Crown Office confirming that the forensic tests had proved to be unproductive.

At this stage the Precognition is being submitted to Crown Office to be passed to the advocate depute who is to conduct the trial. It is not being sent to enable Mrs Burns and her colleagues or any advocate depute to review the original marking instruction. In this case it is probable that additional material came to light during the re-precognition of Mrs Bryce and the pathologists. In particular, it is probable that at this stage what turned out to be a significant line of evidence against Andrew Coulter came to light (that being evidence from the pathologists to corroborate Mrs Bryce's account that Mr Chhokar had been restrained during the attack). If this is correct this new line of evidence was not highlighted in either Mr MacDonald's letter dated 18 February 1999 or in the revised narrative or analysis sections of the Precognition. In accordance with normal practice the case was not reviewed by Mrs Burns before the papers were passed to the trial Advocate Depute.

The trial advocate depute

As a result of reallocation of work it transpired that the trial was to be conducted by Miss Frances McMenamin Q.C. She had been a fiscal for 8 years before she was called to the Bar where she was engaged in criminal defence work before her

appointment as an advocate depute in May 1997. In July 1998 she became a Queen's Counsel. Miss McMenamin received the papers (i.e. the Crown correspondence file and the Precognition) during the course of the week commencing 22 February 1999, which was the week before the trial was due to commence. This was one of ten cases allocated to her for prosecution in the two week period commencing 1 March 1999 and six of these cases would have become time barred by the end of that Circuit in Glasgow.

No advance warning of any speciality or complexity in the case was given to Miss McMenamin. The trial was due to commence at the start of the Circuit because it had the earliest time bar date. She probably read the summaries of this case and the rest of her cases over the week of 22 February and then prepared this case in detail over the weekend of 27 and 28 February. She had to work over the weekend because she was involved in other Crown Office work in the week of 22 February.

The trial advocate depute's opinion

When Miss McMenamin studied the case in detail she was concerned about the standard of precognition and on reading the papers she felt that she would have to precognosce the case herself. She also formed the view that all three should have been indicted for murder. Even at this late stage the Crown was not bound by the decision to indict Ronnie Coulter on his own. Miss McMenamin did have the option not to proceed to trial against Ronnie Coulter in order to give the Crown time to reconsider the original decision. However, by the date that she received the papers Ronnie Coulter was approaching his one hundred and tenth day in custody (6 March) and if the trial did not start by 6 March he would have to have been liberated from custody.

Crown Office attaches considerable weight to consistency in decision-making and although Miss McMenamin did not know the reasons for the decision to indict Ronnie Coulter on his own she could see from the file that the case had been considered by two experienced Advocate Deputes (Mr Bell and Mr Cathcart) and she also assumed (wrongly as it transpires) that the Lord Advocate or the Solicitor General would have had some input into the decision. She did not know, and could not have determined from the file, the reasons underlying the views formed by Mr Bell and Mr Cathcart nor for that matter did she know of the limited extent of the involvement of Mr Gilchrist. Equally she could not have known (and did not know) the extent to which the Precognition had changed after the decision was taken to indict only Ronnie Coulter. Although she did not agree with the decision to indict him alone she did not consider it to be so wildly outrageous as to justify liberating Ronnie Coulter. She accordingly decided to proceed with the trial despite her own reservations about the marking decision. In addition to being influenced by respect for those who had taken the original decision, Miss McMenamin was also influenced by her personal judgment that there was still a reasonable prospect of a conviction against Ronnie Coulter even though she recognised that the absence of the other accused would restrict the evidence that she could lead.

It continued to cause her concern during the trial and in her closing submissions to the jury she referred more than once to the absence of two other people from the dock and advised the jury this must not be their concern as it was Ronnie Coulter who was on trial.

The trial

On Monday 1 March 1999 Miss McMenamin reviewed the video evidence of the movements of Ronnie Coulter on the night of the murder. The trial commenced on 2 March 1999 and finished on 9 March. Miss McMenamin had to leave Court after her speech to the jury in order to prosecute another case. She told the trial judge (Lord McCluskey) in advance and also informed the jury that she would not be present at the conclusion of the case. She arranged for her place to be taken by another experienced advocate depute, Miss Ruth Anderson Q.C. There was no detailed discussion between them when the substitution took place.

Lord McCluskey has no criticism to make of the way in which Miss McMenamin conducted the trial before him.

Application to restrict reporting

The only criticism that can be made is that she did not apply to the Court for an order restricting publication of the trial so that if Andrew Coulter and David Montgomery should be prosecuted there would be no risk of prejudice as a result of publicity following the earlier trial.40 This was an oversight and it is possible that it was influenced by a lack of any widespread media attention to the case before Lord McCluskey made his remarks.

Although an order was made subsequently it does not follow that an order would have been made had Miss McMenamin applied for it at this stage. The High Court of Justiciary has recently held it to be inappropriate to restrict reporting of trials such as this.41

No motion for sentence

When the jury in the Coulter case retired to consider its verdict Miss Anderson dealt with two pleas before Lord McCluskey. In the afternoon the jury returned with the verdict in the case against Ronnie Coulter.

After the verdict had been recorded Miss Anderson stated to the court "In the circumstances I have no motion". Her view was that the accused had been remanded in custody and had served the equivalent of a seven month prison sentence. This is a common practice of advocate deputes in murder cases where the jury returns a verdict of assault with no aggravation.

As "master of the instance" she was entitled to exercise her discretion as she did and to decide that the interests of justice had been satisfied by the term of imprisonment that had already been served.

CHAPTER 10

Review after First Trial

Lord McCluskey made his remarks at the close of the trial and they were reported in the press on 10 March 1999. On 11 March the Lord Advocate issued his statement in reply to Lord McCluskey. On 12 March Miss McMenamin QC submitted a full written report on the case that had been requested by the Law Officers.

It had been the intention of the Crown from 22 January 1999 (the date of the decision to prosecute only Ronnie Coulter) to review the position of the other accused at the conclusion of the first trial. In the normal course of events that exercise would have been carried out by Mrs Burns (the fiscal with greatest knowledge of the case) in association with Mr MacDonald, the trial advocate depute and a duty advocate depute. Crown Office did proceed to review the case but because of the publicity by now surrounding the case that review was conducted at a more senior level than normal. The Law Officers were involved and they gave instructions through the Deputy Crown Agent, Mr Frank Crowe. At a local level the Regional Procurator Fiscal, Mr Brown, became personally involved.

There was a review meeting on 15 March 1999 and on 17 March instructions were issued to the Regional Procurator Fiscal to precognosce Ronnie Coulter on oath. The Solicitor General personally read the precognition and wrote a note to the Lord Advocate dated 18 March42 and the Lord Advocate also read the papers and wrote a reply dated 30 March 199943. The Lord Advocate called for certain matters to be investigated (including Andrew Coulter's employment history in order to test his explanation for the cuts on his hands) and that instruction was issued in a letter from the Deputy Crown Agent dated 12 April 1999.

Ronnie Coulter is precognosced on oath

Ronnie Coulter was precognosced on oath on 1 April 1999 by the Regional Procurator Fiscal, Mr Brown. Mr Brown reported to Crown Office by letter dated 13 April 1999. Having reviewed all of the evidence, including the evidence available for the first time from Ronnie Coulter, Mr Brown recommended proceedings against Andrew Coulter and David Montgomery.

The indicter reviews the papers

On 14 April the Deputy Crown Agent returned the whole papers to Mrs Burns for her to review them. He met members of the Chhokar family on 16 April and they drew to his attention an allegation that the accused had been boasting that they had murdered Mr Chhokar. The Deputy Crown Agent instructed Mr Brown in turn to instruct the police to investigate this allegation. Mr Brown instructed the police to investigate. The police did so and reported on 5 May 1999. The inquiry failed to find any evidence to substantiate the allegation.

On 14 May, following the review of the whole papers by Mrs Burns, the Deputy Crown Agent instructed Mr Brown to arrange for the pathologists to be re-precognosced and also for a precognition to be obtained from Dr. Walker (the police surgeon who had examined Andrew Coulter's hands when he was detained).

CHAPTER 11

Second Indictment and trial

The Procurator Fiscal attended to the various lines of inquiry instructed by Crown Office and submitted a Precognition on 16 June 1999. The second Precognition has been made available and the Inquiry has been able to compare the second Precognition with the Precognition available at the time of the first trial.

The Deputy Crown Agent passed the second Precognition to Mrs Burns on 16 June and on 18 June she wrote a memo to him enclosing a draft indictment. On 18 June she also drafted a shopping list letter for the second trial. On 21 June a report was submitted to the Law Officers communicating to them the joint conclusion that there was now a sufficiency of evidence against the two remaining accused. It was on 28 June that the Lord Advocate instructed proceedings against both accused. The shopping list letter was issued on 29 June 1999 and on 1 July 1999 the indictment was sent out for service. On 2 July the Procurator Fiscal passed it to the police for service.

The indictment

In this indictment charges were libelled against Andrew Coulter alone in respect of stealing the cooker and giro cheque and of uttering the cheque.

A third charge was libelled against David Montgomery and Andrew Coulter and it stated that:

"On 4 November 1998 at Garrion Street, Overtown Wishaw, you David Shields Montgomery and Andrew Alexander Marshall Coulter did while acting with Ronnie Coulter, 8 Caplaw Tower, Gowkthrapple, Wishaw assault Surjit Singh Chhokar, 65 Caplaw Tower, Wishaw seize hold of his body, struggle with him and strike him on the body and you David Shields Montgomery and Andrew Alexander Marshall Coulter did strike said Surjit Singh Chhokar repeatedly on the body with a knife or similar instrument and a piece of wood and metal and you did murder him and you Andrew Alexander Marshall Coulter did previously evince malice and ill-will towards him."

This charge split the incident in which Mr Chhokar was murdered into two distinct parts. The first part or phase was an assault on Mr Chhokar in which the attackers seized him, struggled with him and struck him on the body. The second part or phase was the murder itself in which Mr Chhokar was struck with the baton and stabbed with a knife. During the first part of the charge all three accused were alleged to have acted together in concert but in the second part (which crucially contained the allegation of murder) no reference was made to Ronnie Coulter.

By wording the charge in these terms the Crown was alleging that although all three accused were acting together in the initial part of the attack, when it came to the stabbing Andrew Coulter and David Montgomery were acting together but independently of Ronnie Coulter.

That was inconsistent with the position adopted by the Crown in the first trial. At the first trial the indictment charged Ronnie Coulter as "acting along with others" throughout the entire incident. The charge against Ronnie Coulter was drafted in terms which gave the jury the flexibility to find him guilty of murder on either of two grounds: (1) that he had struck the fatal blow with the knife; or (2) if he did not, at least he was knowingly engaged in a murderous attack with the others (i.e. Andrew Coulter and David Montgomery) when the fatal blow was inflicted and that he was guilty of the crime of murder applying the rule of concert even if he was not the one who stabbed Mr Chhokar.

The inconsistency between the charges in the two trials had its origins in a rule of practice deriving from a decision of the High Court of Justiciary in 1945 in the case McAuley v HM Advocate44.

The decision in McAuley v HM Advocate required the second indictment to be consistent with the verdict in the first trial. The second indictment could allege that Ronnie Coulter had participated in an assault on Mr Chhokar (since he had been convicted of that crime) but it could not allege that he had participated in the stabbing (because he had been acquitted of murder).

By drafting the second indictment in these terms the Crown periled its case on the allegation that it was either Andrew Coulter or David Montgomery (and not Ronnie Coulter) who stabbed Mr Chhokar.

On 10 December 1999, four months after the indictment had been served, the High Court of Justiciary overruled McAuley v HM Advocate in Howitt v HM Advocate45. The indictment for the second trial no longer had to be consistent with the verdict in the first trial and it was now open to the Crown to name Ronnie Coulter as having participated in the whole incident thereby gaining the option of arguing that Andrew Coulter and David Montgomery might be guilty of murder even if Ronnie Coulter had stabbed Mr Chhokar.

The trial judge, Lord Bonomy, questioned whether the Crown might apply for leave to serve a fresh indictment or amend the existing indictment. This was considered by the trial advocate depute overnight and he consulted with the Lord Advocate. It was decided not to apply for leave.

A number of reasons are advanced for this.

1. There was justified doubt about the competence of such a radical amendment. An amendment will not be granted where it would cause serious prejudice to the accused: Walker v HMA46. Arguably to have amended the charge at this late stage would have been prejudicial to the defence because the defence had been pursuing a positive line that Ronnie Coulter had committed the stabbing and the defence may not have pursued that line if they had known from the outset that the Crown's case was that even if Ronnie Coulter had stabbed Mr. Chhokar the two accused had participated with him.

2. By the stage that this issue was raised the prosecution case was that Andrew Coulter was the person who had actually stabbed Mr Chhokar. In advance of the second trial the trial depute, Mr Murphy, discussed the case with the pathologists in some detail and he came to the view that Andrew Coulter had been in the best position to stab Mr Chhokar. Ronnie Coulter could have stabbed Mr Chhokar but for him to have done so Andrew would had to have stepped out of the way and the evidence from Mrs Bryce was that she saw Ronnie Coulter make only one swing at Mr Chhokar after Andrew left and that one swing could not have caused the multiple wounds suffered by Mr Chhokar. There was concern that (even if such an amendment was competent) to have amended at a late stage in the trial to introduce an inconsistent alternative case against Andrew Coulter on the basis of art and part guilt with Ronnie Coulter as the person who had stabbed Mr Chhokar would have defeated the credibility of the Crown's entire case.

3. Mr Murphy was relying on the evidence of Ronnie Coulter to corroborate Mrs Bryce's account of Mr Chhokar being dragged across the road. Ronnie Coulter denied that he had stabbed Mr Chhokar and there was concern that an amended indictment would have required the Crown to contradict an important Crown witness, Ronnie Coulter, which was something that the defence would not have been slow to take up.

Mr Murphy conducted the second trial on the basis that it was Andrew Coulter who stabbed Mr Chhokar and that David Montgomery had assisted him. Because of the wording of the indictment Lord Bonomy told the jury that they could only reach the conclusion that Andrew Coulter stabbed Mr Chhokar if they were satisfied beyond reasonable doubt that Ronnie Coulter did not do so. This was a very heavy burden as no Crown witness was able to say who stabbed Mr Chhokar.

Whether the Crown would have drafted the second indictment on this basis if Howitt had been decided earlier it is not possible to say.

The second trial

The case was indicted to the sitting of the High Court at Glasgow on 16 August 1999 but was delayed due to the defence raising human rights and devolution issues. It did not commence until 10 November 2000.

Mr Sean Murphy conducted the prosecution case. He qualified as a solicitor in 1991 and for six months specialised in criminal and family law. He was called to the Bar in July 1992 and had a predominantly criminal practice. He was appointed an advocate depute in September 1998. His junior was Dr Vineet Khurana who is a qualified medical practitioner.

New evidence

In the discussions that Mr Murphy and Dr Khurana had with the pathologists before the trial additional evidence emerged to support Mrs Bryce's account of Mr Chhokar being restrained during the attack. There was a slashing injury to the side of his left thigh that the pathologists said could be aligned with an injury to the abdomen and both injuries could have resulted from Mr Chhokar being struck with the knife when his leg was drawn up towards his abdomen in a defensive reaction.

Ronnie Coulter

At this trial there was the addition of the evidence of Ronnie Coulter who had been precognosced on oath after his trial. In the precognition he denied that he stabbed Mr Chhokar and said that he did not know who had stabbed him. He described David Montgomery at Mr Chhokar's left holding his clothing and Andrew Coulter on his right also holding his clothing and forcing Mr Chhokar across the road and against a fence. This put Mr Chhokar in the position that Mrs Bryce described him as being in. Ronnie Coulter said that he saw Andrew with a stick that he thought he swung but he could not say if he hit Mr Chhokar with it. He claimed that his only intervention was to prevent Mr Chhokar being struck with the stick.

He said that he could not remember Andrew Coulter's remarks in the presence of Donna Campbell and Corinne Chambers and the terms of his precognition on oath had to be put to him. He was reluctant to state the terms of his conversation with Alexandra Tierney regarding the disposal of the box of knives and this reluctance was amplified under cross-examination. As a result of his prevarication he was found in contempt of court.

Alexandra Tierney

In court Alexandra Tierney failed to identify the clothing that had been recovered by the police on 9 November 1998 but she had previously signed the labels attached to it. She stuck to her denial that Ronnie had told her that he had the knife and said that she assumed Ronnie had the knife from the way he was behaving and because he said that Montgomery had nothing and Andrew Coulter had the baton. She too was found in contempt of Court.

Joseph Buchanan

Joseph Buchanan was also a witness at this trial having absented himself from the first trial. He said that Alexandra Tierney told him that it was Ronnie that did the stabbing. This contradicted her suggestion that she had not volunteered this statement to the police and added to the difficulty for the Crown in making the case that Andrew Coulter had done the stabbing.

David Montgomery

David Montgomery gave evidence in his own defence. He admitted that he had been involved in the earlier encounter with Mrs Bryce about the giro and said that he would take Andrew Coulter up to her house if he was going to see Mr Chhokar. He said that he understood that Andrew and Mr Chhokar would explain the giro to Mrs Bryce.

He received a phonecall about 11.15pm and went to collect Andrew to take him to meet Mr Chhokar. In the event Ronnie joined them and all three drove together. They parked round the corner outside Andrew's mother's house and walked round to Mrs Bryce's house. They were at the gate for under one minute when Mr Chhokar drove up. As Mr Chhokar came in the gate Andrew approached him and tried to hit him with the baton. Mr Chhokar started to go backwards. Ronnie joined in and Andrew fell back to the ground. He said that "Chhokar was running back away from Ronnie up to level with the car and Ronnie was just getting into him".

It looked to Montgomery as if Ronnie was punching Mr Chhokar with both hands. Mr Chhokar went from the gate to the back of the "white van". As Andrew was on the ground Montgomery ran towards Mr Chhokar to punch him and he said that he did that because he thought that Mr Chhokar had knocked Andrew to the ground. He did not reach Mr Chhokar and did not hit him.

Ronnie and Mr Chhokar "disappeared round the side of the van". As Montgomery reached the van Mr Chhokar crossed the road again and Ronnie ran off. When Mr Chhokar was in the middle of the road Andrew ran towards Mr Chhokar trying to hit him with the baton whereupon Mrs Bryce came on the scene. He then left with Andrew.

This account was irreconcilable with that of Mrs Bryce but it did overlap to some extent with the evidence of another Crown witness Thomas Muir, who gave evidence in the second trial but had not been led as a witness in the first trial. Mr Muir is a neighbour of Mrs Bryce.

He heard a noise and when he looked out of his window he saw two men emerge from the back of the white glazier's van, one chasing the other. His evidence was that "the one chased the other chap, hit him with the stick, what I thought was a stick...He hit him with a stick and then turned and ran back up the street".

Mr Muir could not identify that person with the "stick" but he said that he was wearing a baseball cap, which is what Andrew Coulter wore that night.

Mr Chhokar proceeded to his car and was leaning against the car when Mr Muir became aware that Mrs Bryce had come out and was screaming.

Traces of what appeared to be blood were found on the fence beside where the glazier's van was parked in Garrion Street. Though noted by the police photographer, who took photographs of them47 there is nothing to say that these traces, if they were blood, were examined or analysed. If it was the blood of Mr Chhokar it would have tended to support the view that he was stabbed on that side of the street (possibly when, on the evidence of Montgomery, Mr Chhokar was behind the van with Ronnie Coulter) and not as Mrs Bryce suggested on the other side. There was also the Irn Bru bottle and a set of keys found on the pavement on that side of the road and spectacles at the rear nearside of the glazier's van.

The evidence that Montgomery gave during his trial had certain similarities to the information that he had given in his police interview but his account was amplified and, as given in Court, it more directly tied in with the evidence of Mr Muir.

If Mr Muir is correct then it is surprising that Mrs Bryce did not see Mr Chhokar being chased and struck with a stick. In reality, though, as the evidence emerged in the second trial there were two irreconcilable scenarios as to how Mr Chhokar came by his injuries. There was Mrs Bryce's account that led to the inference that he was stabbed as he was being forced across the road by the three accused. On the other hand, there was the Montgomery account that led to the inference that he had been stabbed as he was retreating from Ronnie Coulter (possibly behind the white van) and that Andrew Coulter had merely tried to hit him with the baton at the beginning and end of the incident.

Margaret Chisholm

Another new witness was Margaret Chisholm and the defence called her. She is the mother of Andrew Coulter and her evidence was that Ronnie Coulter, when on remand at Barlinnie prison, had admitted that he had killed Mr Chhokar. According to her evidence he had done so again after his acquittal and on another occasion he said, "I stabbed the Black bastard." She was precognosced before she gave evidence and the racial slur was an addition to what she said in her precognition.

CHAPTER 12

The decision not to indict all three accused together

It is generally accepted that there are strong reasons why joint offences should be tried jointly. One reason is that where there are cross incriminations (cut-throat defences) it allows the same jury to decide between the accused. It also restricts the opportunity for inconsistencies to occur and there is a saving in time and public expense.48

Evidential and legal difficulties

This case always had a number of significant evidential and legal difficulties.

Evidential difficulties

There were relatively few eye-witnesses to the fatal incident. The limited eye-witness evidence that was available (combining the material available before the trials and the evidence that emerged in the course of the two trials) ultimately supported two potentially inconsistent scenarios as to the precise sequence of events surrounding the incident and the nature of the participation of each accused. What is more, there were also weaknesses in the quality of the available evidence. Some of the key witnesses had given different accounts to the police during a number of interviews and this opened them to attack by the defence. Two specific, pivotal witnesses may be mentioned.

Mrs Bryce had initially named only Andrew Coulter to the police and it was not until her fourth statement that she named the other two accused. She was further undermined by the fact that her clear evidence that she had seen all three accused outside her house on a number of occasions earlier on the night of the murder from about 8 pm was contradicted by the evidence from the police regarding the CCTV video film from Caplaw Tower which suggested that the Coulters had not left that building before11.15 pm. Even if the Crown had led the evidence from Mary Drummond and Arthur Weir that contradicted the police evidence this would only have served to introduce yet more contradictions into the Crown case.

The second example is Alexandra Tierney. When interviewed by the police on Tuesday 10 November 1998 she gave a statement that was noted in writing and read back to her on tape. In her police statement she is recorded as having said that Ronnie Coulter told her "Andrew had a bat, he (Ronnie Coulter) had a wee knife and Ches (Montgomery) didn't have anything." The statement by Tierney that Ronnie Coulter had told her that "he had a wee knife" was highly significant because the murder weapon was a small knife and this was tantamount to an admission that he (Ronnie) had the murder weapon during the incident.

She contradicted that police statement when precognosced by Mr MacDonald on 15 December 1998. She denied that Ronnie Coulter told her he had a knife with him when Mr Chhokar was assaulted. She said that the police questioned her for a long time and that she had simply assumed that he had a knife because the deceased had been stabbed and Coulter was asking her to help dispose of a set of knives with one missing. This evidence remained important but was obviously weaker than her account in the police statement.

When giving evidence in the first trial she gave a subtly different third account of her conversation with Ronnie Coulter. In court she again denied that Ronnie Coulter had admitted that he had the knife. She even weakened the evidence in the police statement that Ronnie told her that Andrew had a bat and that Montgomery had nothing. Even if she had adhered to those two propositions that would have left the inference that Ronnie must have had the knife: if Andrew had the bat and Montgomery had nothing that left only Ronnie who could have had the knife. In evidence at the trial she withdrew one of the limbs of even that inference. She said that what Ronnie said with reference to Montgomery was:

"I don't know whether Ches had anything or Ches had nothing."

The first of those two possibilities (i.e. that Ronnie did not know whether Montgomery had anything) left open the possibility that Montgomery had the knife.

Legal difficulties

At the marking stage (that is to say when the decisions were being taken relative to the first indictment) the personnel involved (advocate deputes and fiscals) require to take into account the evidence in the precognition in deciding whether or not there is a corroborated case against each accused. They cannot take into account the evidence that a witness (such as Alexandra Tierney) may have given in a police statement if the truth of that statement is denied when the witness is precognosced by the procurator fiscal. That rule of practice effectively eliminated Alexandra Tierney's police statement from consideration at that stage and required those considering the marking of the case to confine themselves to the weaker statement by her in her precognition.

The crucial practical limitation in the evidence available on precognition was that though a single knife probably inflicted the fatal wounds no witness spoke to having seen the knife before, during or immediately after the incident. Moreover none of the accused admitted having seen, let alone used the knife. There was no evidence as to which of the accused had the knife and in that situation the case against all three accused depended on the law of concert.

It is difficult to prove a case based on concert (also known as art and part guilt) in cases involving multiple accused, particularly in circumstances where there is uncertainty as to who had the murder weapon and what part each accused played in the incident.

Acting in concert

Generally speaking a person charged with a crime is responsible only for his own acts. An individual may be criminally responsible for the acts of another only where the requirements of concert are satisfied. Concert is the rule that renders one individual jointly responsible for the acts of another. It is a complex rule of law, particularly in its application to the charge of murder following on the decision of the High Court of Justiciary in H.M. Advocate v Brown49.

The basic rule of concert is that where two or more individuals act together in furtherance of a common criminal purpose each is guilty of the totality of the acts committed by all the participants falling within the scope of that common criminal purpose.

A common criminal purpose can be formed in advance by agreement or it can arise spontaneously (as where strangers join in a street brawl).

The key limitation of the rule is that guilt only extends to acts falling within the scope of the joint criminal purpose. For example, if two men attack a third, punching him with their fists and one of the attackers suddenly pulls out a gun that his accomplice did not know he had and shoots the third man, the accomplice is not guilty of the assault with the gun because that was well beyond the scope of the common criminal purpose (an assault with fists).

The effect of Brown

The effect of the decision in Brown is that for a conviction for murder the Crown must prove that a murderous attack was within the scope of the common criminal purpose. The Crown must prove that each accused had in contemplation, as part of the joint purpose, an act of murderous quality; that is to say, an act either intended to kill or so wickedly reckless as to imply a disposition so depraved as to be regardless of whether the victim lived or died. It is not sufficient for a conviction for murder that each accused had in contemplation that the group would inflict serious injury on the victim, even serious injury inflicted by lethal weapons, if a fatal attack was beyond contemplation. The Crown must prove that a fatal attack was in the contemplation of each accused.

Brown was a case with certain similarities to this case. In Brown the two accused attacked a man punching and kicking him. The man died from a single stab wound to the heart by a knife. Though one of the accused was armed with a metal bar or hammer both accused denied knowledge of the knife and, indeed, each denied having used the knife. The Crown was unable to prove which of the accused had used the knife. Both accused were convicted of murder but on appeal their convictions were reduced to culpable homicide. Even though both accused had joined in an attack with the intention of inflicting serious injury and both had known that a potentially lethal weapon (the metal bar or hammer) might be used, the fact was that the fatal blow was struck with a knife. The verdict of murder was held to be unsound because it was possible that if the jury had been asked to consider the matter it might have concluded that the use of the knife was beyond the scope of the joint criminal purpose. In other words, the jury might have concluded that the use of a lethal weapon such as a knife to inflict a fatal blow was not within the contemplation of both accused. The convictions for murder were reduced by the Appeal Court because the trial judge had misdirected the jury by failing to tell them to consider whether each of the accused had in contemplation, as part of the joint purpose, an act of murderous quality.

Brown is a controversial decision50 and it has introduced a degree of uncertainty into the law so much so that the leading Scottish textbook on Criminal Law51 states that "It is difficult to pin down the modern law".

The debate on the sufficiency of evidence for a charge of murder against each of the accused (Ronnie Coulter, Andrew Coulter and David Montgomery) has at its heart understandable differences of professional opinion about the proper application of the rule of concert to the facts of this case.

Mathieson v HM Advocate52

Where a victim dies of a stab wound inflicted by a knife used during an attack by more than one individual, the law of concert does not require that each accused knew in advance that a knife was to be used. Even when it is not known in advance that one of the group has a knife, the other members of the group can be guilty of murder if they become aware during the course of the incident that a knife is being used and continue to participate in the attack. Ideally awareness can be proved by evidence from bystanders who themselves saw the knife during the course of the incident. Even in the absence of such evidence concert can be proved by circumstantial evidence (such as the location, pattern and distribution of the injuries) from which it can be inferred that each of the accused must have been aware that a knife was being used.

The first debate

At the precognition stage there was no evidence that the accused knew in advance that a knife was to be used nor was there evidence that anyone saw the knife before or during the incident. That being so, the first debate in the marking of the case was whether the Crown had a sufficient basis on the evidence from which to infer that each of the accused must have been aware that a knife was being used during the incident.

The second debate

The second debate was whether it was necessary for the Crown to prove knowledge or awareness of the use of the knife. There was an argument that the Crown could prove more generally that an attack of the quality required for murder was in the common contemplation of the accused even if they did not know that the fatal wound would be delivered by a knife.

There are two sides to this second debate. Some of those involved in the marking of the case have argued that in order to rely on concert on the facts of this case the Crown had to prove that each accused knew (or must have known) that a knife was to be used and that the murderous quality of the attack could not be proved more generally. They find some support in the case of Brown53. Those who take that view could rely on the passage in the Opinion of Lord Justice General Hope at page 391E-F:

"The jury had to be satisfied that [each accused] was aware that a knife was likely to be used in the attack to take the verdict beyond one of assault. But what was there to show, once this point was reached, that he or she anticipated that the knife would be used to inflict a wound of this character [i.e. a wound to the heart] ... [The jury] had to be satisfied that ... [both accused] had in contemplation, as part of their joint purpose, an act of the necessary degree of wicked recklessness such as that the deceased would be stabbed by plunging a knife into his heart".

The emphasis in that passage is on knowledge of the use of a knife, with knowledge that an alternative lethal weapon (a hammer or metal bar) was being used not necessarily being sufficient for guilt by concert to a charge of murder. Those who take that view in this case point to the fact that though a potentially lethal weapon (the lead weighted baton) was known to be in use it was not deployed with lethal force. It inflicted at most superficial bruising. That being so, they say that the mere use of the baton did not necessarily impress the incident with murderous quality. They argue that it was essential to the Crown case to prove knowledge of the use of the knife.

The contrary view is well articulated in the supplementary three day report by Mr McCann (who, coincidentally, was the precognoscer in the case of Brown). The contrary view is that when Lord Justice General Hope said that "[The jury] had to be satisfied that ... [both accused] had in contemplation, as part of their joint purpose, an act of the necessary degree of wicked recklessness such as that the deceased would be stabbed by plunging a knife into his heart" (emphasis added), the Lord Justice General was referring to stabbing a knife into the heart merely as one example of a wickedly reckless act (as indicated by use of the word "such").

It follows that the Crown could prove the necessary murderous quality of the contemplated acts by reference to general nature of the conduct and background circumstances without necessarily proving specific knowledge of the lethal use of a knife.

The first line of argument was the one that prevailed when the decision was taken on 13 November 1998 to fully commit only Ronnie Coulter and to liberate Andrew Coulter and David Montgomery. It continued to hold sway when the decision was taken in January 1999 to indict only Ronnie Coulter for the first trial. Mr McCann's argument to the contrary was rejected at the three-day report stage, though in the event Lord McCluskey's charge to the jury in the first trial accords with Mr McCann's interpretation of the law. This is what he said:

"Now, ladies and gentlemen, if you've got an attack in which you can prove beyond a shadow of a doubt that all the three assailants were armed with knives, there's no great problem there. If you find that one was armed with a knife and the other two were not, then you have to look carefully to see whether the ones who were not armed went into the fight expecting that a knife would be used. If you find that one was armed with a knife and one was armed with a gun and one was armed with a baton of the kind that could inflict extremely serious injuries, you may say, `Well, these are lethal weapons, both the gun and the baton, and the fact that the lethal blow was struck with a knife is not itself vital and they were using life-threatening means.' So ladies and gentlemen, I can only speak in very general terms. You must decide about the whole circumstances.

It is important to consider whether or not there was an element of pre-planning here. You have to consider the very character of the attack itself, the various evidence that you've heard from Mrs Bryce that this was a kind of ambush. She looks out of the window and everything's okay. She turns from the window. There's the scream. She looks back and he's under attack by three outside his own door, and in support of that view that he was then manhandled by more than one, you've got the fact that he's got no defensive wounds, according to the medical evidence, so these are all matters that bear upon the character of the assault which was carried out.

So in summary, was Chhokar assaulted? Was he the victim of a concerted assault? Was the Accused involved in the concerted assault with others, whoever they may be? Did the Accused become involved, expecting that he or one of the others was likely to use lethal, life-threatening violence, and did Chhokar die as a result of the use of such life-threatening violence? Well, ladies and gentlemen, these are the questions. If you answer all those against the Accused, you're entitled to find him guilty by reason of concert."

So the Crown did not need to prove specific knowledge of the use of the knife provided that it could prove from general facts and circumstances that, irrespective of the nature of the specific weapon that came to be used to inflict the fatal wound, each of the accused had in contemplation an attack that would be life-threatening.

The decision taken on 22 January 1999 to indict only Ronnie Coulter was taken in the light of the evidence recorded in the then Precognition. As explained earlier the edition of the Precognition that was being considered as at that date by Mr Cathcart, Mr Gilchrist and Mrs Burns is no longer available and it is fair to say that by the time that Miss McMenamin received the papers for the first trial the Precognition had been revised with the inclusion of additional evidence (particularly from Mrs Bryce and the pathologists) that had a bearing on the application of concert to the case. Because the edition of the Precognition available on 22 January 1999 is no longer available it is not possible to say whether, on the basis of the limited evidence then available, the decision to indict only Ronnie Coulter was right or wrong.

However, on the basis of the fuller evidence available in the revised Precognition prepared for the first trial (which is available to the Inquiry) it is at least open to argument that there was a sufficiency of evidence against both Ronnie Coulter and Andrew Coulter for a charge of murder. There was not, even in the revised precognition, a sufficiency of evidence against David Montgomery. A sufficiency of evidence only emerged against him after the first trial when Ronnie Coulter was precognosced on oath.

CHAPTER 13

The correct marking decision

In the light of the fuller evidence ultimately made available in the Precognition the correct marking decision would have been to indict the two Coulters for trial together on a charge of murder using David Montgomery as a witness.

However, even if the Coulters had been indicted together it is not possible to say what the outcome of the trial would have been because the significant problems in the quality of the evidence would have remained.

The criteria

In marking a case (that is to say taking decisions relative to a possible prosecution) Crown counsel look to the evidence in the precognition (and not in the police statements if they are contradicted in the precognition) and they take the decision based on an analysis of the sufficiency of evidence. They will not authorise a prosecution if there is no sufficiency of evidence. Save in a very exceptional case54, if there is a sufficiency of evidence Crown counsel will authorise prosecution even if there are reservations about the quality of that evidence, because the quality of the evidence is a matter for the jury to determine.

Sufficiency is a technical, legal measure of the evidence. It relates to the presence of corroboration. For corroboration there must be evidence from two independent sources capable of establishing the essential facts, which broadly are that the crime charged was committed and that it was committed by the accused.

The quality of the evidence is simply a measure of the ability of the evidence to persuade a jury beyond reasonable doubt of the guilt of the accused on the charge. It takes into account consideration of the credibility (honesty) and reliability (accuracy) of the evidence.

The sufficiency of the evidence is determined independently of its quality. The question is whether there is evidence from two independent sources which, if accepted by the jury, could prove the essential facts. If there is not the accused has no case to answer and the trial judge would withdraw the case from the jury and acquit the accused. If there is a sufficiency of evidence the case will be determined by the jury who will decide, taking into account the quality of the evidence, whether the Crown has proved guilt beyond reasonable doubt.

At the marking stage the question is whether the case meets the minimum threshold of a sufficiency of evidence against each accused.

The issue

In this case there was never any question about the sufficiency of the evidence on the first essential fact, which is that the crime of murder had been committed. The issue was whether there was a sufficiency of evidence to prove that each accused had committed that crime.

That in turn may be broken into two parts. Firstly there was a sufficiency of evidence that each accused was present during at least part of the incident. The key question was whether there was a sufficiency of evidence that each accused had in contemplation an attack of the requisite nature to support a charge of concerted murder.

Sufficiency of evidence

Combining the sources of evidence that will be summarised below there was a sufficiency of evidence for a charge of murder against Ronnie and Andrew Coulter. This analysis will proceed on the basis of what may be termed the Bryce scenario as to the sequence of events, rather than the scenario that emerges from the evidence of Thomas Muir and David Montgomery. The conflict between these two scenarios has a bearing on the quality of the case but it does not preclude the conclusion that there was a sufficiency of evidence on the Bryce scenario. It so happens that the clearer case of sufficiency against Ronnie and Andrew Coulter emerges by following the Bryce scenario and that is, accordingly, what will be done here.

1. Donna Campbell and Corrine Chambers gave evidence regarding conversations on 4th November 1998 when they were in the company of Ronnie and Andrew Coulter. The talk included taking Mr Chhokar's eyes out and throwing him off a bridge into the Clyde. These conversations took place when the men were drinking and laughing which might cast doubt on the genuineness of the threat but, taken at its highest, this evidence could show that a life-threatening attack was within the common contemplation of Ronnie and Andrew Coulter. Critically though, these witnesses did not suggest that David Montgomery was present during the course of these conversations.

2. There was evidence from Jamie Rooney that Andrew Coulter intended to take the baton with him when he went to see Mr Chhokar that night. As described earlier the baton is a chair leg modified into a weapon. It is of significant weight and is itself a potentially lethal weapon. Andrew Coulter admitted to the police having hit Mr Chhokar once with the baton. There was evidence from the pathologists that there were two bruises to his head and neck consistent with glancing blows from the baton. Thomas Muir saw Mr Chhokar being hit with a stick which could have been the baton, though he himself thought that the baton was shorter than the stick that he saw.

3. Mr Fitzgerald reports having seen two men standing in the shadows in Garrion Street. Mrs Bryce saw Mr Chhokar return but lost sight of him briefly as he approached the gate. She next reports having heard Mr Chhokar scream. The inference is that the attackers lay in wait concealed by darkness and without any discussion or argument they launched an immediate attack on Mr Chhokar as he approached his house.

4. Mrs Bryce describes the three accused forcing Mr Chhokar backwards across the road. Andrew Coulter was in the centre and had hold of him by his jacket. Ronnie Coulter and David Montgomery were to either side each holding an arm. She said that it looked like Mr Chhokar was trying to shut his arms across his chest but Ronnie Coulter and Montgomery were holding his arms apart. This is significant because the fatal injury was to the chest and, moreover, all the knife wounds were positioned to the left side of the body in a broadly linear pattern. The pathologists said that the pattern of the injuries could be consistent with Mr Chhokar having been restrained (as Mrs Bryce said) while the knife wounds were inflicted.

5. The pathologists also gave evidence of two small knife wounds to his face and head. One was a minor crescent shaped cut to the left of the nose and the second was a nick to the edge of the left ear and behind the ear on the side of the head. The relative positions of these cuts were such that it was unlikely that the one blow with the knife had caused them. The presence of these cuts was supportive of the view that the knife must have been up at head height at some stage in the incident and held there sufficiently long for two blows to be administered. That could support an inference that the knife must have been visible to all the participants at some stage during the incident.

6. The evidence from Alexandra Tierney at precognition was that Ronnie Coulter gave her a bag containing his clothing and that of Andrew Coulter, which had been washed, and asked her to dispose of that bag together with the clothing and the boxed set of knives from which one (of a size consistent with the murder weapon) was missing.

7. Ronnie Coulter's fingerprint was found on the box of knives and Andrew Coulter's fingerprint was found on one of the knives in the set (albeit one that was too large to have been the murder weapon).

8. The baton was found in a suspicious place, namely concealed in the bag of a Hoover.

Ronnie Coulter

The case against Ronnie Coulter is based on the accumulation of a number of strands of circumstantial evidence. The primary evidence that he must have had a murderous attack in contemplation was the evidence of Mrs Bryce (supported by the pathologists) that Mr Chhokar was restrained with his arms prised open, which it could be argued facilitated blows to the chest with the knife.

There was also evidence of

a) the conversations reported by Corrine Chambers and Donna Campbell which painted a picture of a potentially life-threatening attack;

b) the evidence from the pathologists about the knife wounds to the face and ear allowing a jury to draw the inference that the knife must have been visible during the attack;

c) The evidence from Alexandra Tierney relating to the disposal of washed clothing and the box of knives; and

d) The evidence from Jamie Rooney and Thomas Muir regarding the baton: the attackers had gone to the scene armed with a potentially lethal weapon (the baton) and that weapon had been used during the incident supporting the inference that a lethal attack was within the joint contemplation.

That combination of evidence was sufficient in law for a charge of murder against him.

Andrew Coulter

Similarly, the case against Andrew Coulter is based on the accumulation of a number of strands of circumstantial evidence. There was the evidence of Corrine Chambers and Donna Campbell, which at its highest, points to a life-threatening attack. There was also the evidence that he went armed with a weapon that was itself potentially lethal and, indeed, admitted having hit Mr Chhokar with it. There was the evidence of Mr Fitzgerald and Mrs Bryce that he was one of a number of men who lay in wait for Mr Chhokar and immediately attacked him on his return. There was the evidence from Mrs Bryce that he participated in an attack during which Mr Chhokar was restrained in a manner that the pathologists would say was consistent with facilitating the fatal blows by the knife to the chest. There was also the evidence from the pathologists of knife injuries to Mr Chhokar's face and ear which could support an inference by the jury that the knife was in a position where it could have been seen by all of the attackers during the incident. Finally, there were the suspicious circumstances that his fingerprint was found on a knife in the set from which the presumed murder weapon came and that his baton was found concealed in a Hoover bag.

This combination of circumstantial evidence was sufficient in law for a charge of murder.

David Montgomery

The crucial limitations in the case of David Montgomery were that he was not present when the conversations spoken to by Corrine Chambers and Donna Campbell took place. Though Mrs Bryce places him as one of the individuals restraining Mr Chhokar while he was attacked there was no independent corroboration of this fact until Ronnie Coulter was precognosced on oath. That corroboration was not available before the first trial and in absence of it there was not a sufficient case in law to support the allegation, central to a murder charge, that he must have had in contemplation an attack of murderous quality. There was only a sufficiency of evidence against him for a charge of assault involving punching and the blow or blows with the baton.

Given that there was not an over-abundance of evidence in the case it would not have been in the public interest to prosecute David Montgomery on the restricted charge of assault. Instead the public interest would have been better served by precognoscing David Montgomery and using him as a witness against the Coulters.

CHAPTER 14

The method of reaching a decision before the first trial

The role of the advocate deputes in arriving at a decision.

Before the indictment was issued for the first trial three advocate deputes were consulted at different stages. In accordance with current practice none of them read or was expected to read the complete Precognition before a decision was reached. After the indictment was served and shortly before the trial the trial advocate depute read the Precognition. By then it was very late to alter the course on which the prosecution had embarked.

The role of the fiscals

Mr McCann's three-day report and the supplement to it had to be written in a remarkably short time. They gave an accurate account of the evidence available at that time and his recommendations were well reasoned.

The head of the High Court unit did not agree with Mr McCann and as an experienced criminal lawyer he was entitled to articulate as he did the contrary argument.

Due to the inexperience and lack of training the procurator fiscal depute who was assigned the task of precognoscing the case did not do so to the required standard. He was conscientious and if he had been sufficiently supervised many of the problems might have been avoided. In particular he should have been told the questions to ask the pathologists.

The counter signing principal depute was expected to supervise the precognoscer. However she says that she had such a heavy workload that she was unable to do so. She had to rely on Mr MacDonald coming to her but he was either reluctant to do so or did not appreciate that there were problems. She did not have sufficient time to read the Precognition before it went to Crown Office but the opinion that she expressed in her analysis was justified.

The principal procurator fiscal depute in the High Court unit went through the case with great care and she drew attention to gaps in the evidence. Without her bringing the defects to light the trial advocate would have had extreme difficulty in presenting the Crown case at the first trial.

Failure of communications

Not only did the case pass through the hands of three advocate deputes and five members of the fiscal service but there were also failures of communication between some of them at various stages. The procurator fiscal depute did not tell Crown Office that he had asked for inquiries to be made about the injuries to Andrew Coulter's hands. The two advocate deputes who marked instructions did so in the customary concise style with the result that their reasoning was not apparent and in one case the intention of the writer was misunderstood.

At the final stage an important discussion between a principal procurator fiscal depute and an advocate depute took place during which they were at cross-purposes. As a result no advocate depute made a considered decision about including Andrew Coulter and David Montgomery in the indictment before the first trial.

Racism

In the course of my investigation I have not found any evidence to suggest that racist behaviour or attitude influenced the decisions that were made. The system failed but this was not due to the fact that the victim belonged to a different ethnic group to his attackers.

Would the decision have been different if there had not been defects?

It is difficult to know what the decision would have been if there had not been defects in the decision-making process. It is sufficient to say that the possibility of reaching a correct decision would have been increased had they not been present.

CHAPTER 15

General observations

The need for continuity

It is often beneficial to have someone with a fresh mind look at a case. It is also important to have someone in charge of the case who is familiar with it and has had control from an early stage.

The advocate depute when asked for an instruction is intended to bring to the process an impartial judgment and a fresh mind. The demands on the time of the advocate deputes are such that decisions about a particular case may be made by a number of different deputes with only a summary of the facts before them. Such a cursory examination of a difficult case may make their influence on a decision taken prior to the trial more apparent than real.

The time pressure in providing continuity

It is a virtue of Scottish criminal procedure that the Crown must bring a case against an accused to trial within strict time limits. The judges zealously enforce this protection, which has been enjoyed in Scotland since the Criminal Procedure Act 1701. This places considerable pressure on Crown counsel and fiscals. The urgency to have a case prepared and to commence the trial leaves little time for consideration of papers. The fiscals in the High Court unit who do give close attention to the case are also working under pressure

Members of the fiscal service have shown an admirable sense of duty by working exceptionally long hours to ensure that time limits are met. In the course of this Inquiry I have seen examples of this. Most public servants expect to be asked to work extra hours on occasions when this is required but it is different if it becomes an accepted practice that they should do so. I was told about principal deputes in the High Court unit who can only keep pace with their workload by using the time spent on the daily train journey to and from work to attend to papers. On a Friday evening they divide the cases with approaching deadlines between them and take them home to indict over the weekend. It was reported that they were regarded as having a "shelf life" of three years as this was the limited period they could continue to work at this pace.

The standard of work is bound to suffer if people who have worked under pressure all week are expected to do so in their own time each weekend. It is important that their sense of duty and responsibility should not be exploited.

The burden on advocate deputes was described by a former depute as "horrendous". A trial advocate depute may have as many as ten or twelve trials at a circuit which lasts a fortnight.

In those instances where advocate deputes are deciding if a case should be in the High Court or the sheriff court reading the narrative, analysis and recommendations may be sufficient to mark a case. In cases where more difficult decisions have to be made more is required if the decision is to be an informed one. In a perfect world continuity in those cases would be provided if the advocate depute who is to conduct the trial gave the instructions and took responsibility for the prosecution from an early stage.

I was told that it would be impossible to ensure that the advocate depute who marks the case conducts the trial. This only happens rarely, in the case of complex fraud or some other highly complicated matter.

To an extent the problem is one of logistics. The advocate depute who marks a case in the Deputes' room one day in Edinburgh may be engaged in trials the next and may not return there for some weeks. Decisions may have to be made in the interim and must be made by a duty advocate depute. It is therefore unlikely that the trial advocate will have played any part in the decision making process.

The increase in the number of solemn cases

The system has changed little for at least the last 30 years and probably even longer. During this period there has been a marked growth in the number of solemn cases. For example in 1999 there were 122 sittings of the High Court comprising 225 courts and 1824 cases were indicted into sittings. During the year 2000 there were 123 sittings of the High Court, but these involved 249 courts and a total of 2072 cases.55 Although these figures include cases previously adjourned and re-indicted with the result that there may be an element of double counting, the general pattern is clear.

There have been increases in the number of advocate deputes in recent years. At the beginning of 1999 there were 14 advocate deputes and in April of that year this was increased to 16. In April of the current year there were 17 advocate deputes. The number of principal deputes in the High Court unit has been increased from 4 to 5. Legal staff in the Procurator Fiscal Service increased from 293 in 1999 to 307 last year with plans to recruit a further 20 to 30.

If the preparation of cases by fiscals and advocate deputes is to be as careful as the interest of justice requires there must be a sufficient number of experienced staff at all levels to do the work and to supervise.

Despite the increases to date I have gained the firm impression from many of those that I met that they have not noticed any reduction in their workload and that the prosecution system is currently under stress. One witness described it as a system in perpetual crisis.

The need for a review of the system

Further increases in numbers cannot provide an answer to all of the deficiencies that this case has exposed. The system itself needs to be adapted to suit modern requirements. An inquiry into the decision-making process in one particular case, such as this, is not a suitable forum to consider wide ranging proposals for the modernisation of a long established system that has many good qualities. Although I have felt able to suggest one change, which to some may seem radical, I believe that a broad review of the entire system should be considered. It would provide an opportunity to consider all the implications of change and to improve the system while preserving its many good points.

Time limits and the defence

Since the first trial began within its time limit and the second was delayed because of legal challenges by the defence the only relevance of time limits to this Inquiry was the pressure placed by them on the members of the prosecution service who had to make decisions.

It is relevant in the context of these general remarks about the system to draw attention to another consequence of time limits. At the beginning of 1999 the adjournment rate of solemn cases in the High Court was around 25% and during the year 2000 it was often as high as 40% with a similar caseload. The Crown is under time constraints, which can only be met by increasing staff levels at not inconsiderable public expense, for the commendable purpose of giving an accused the opportunity of an early trial. It is to say the least unfortunate if this benefit is to be so frequently lost because the defence cannot be ready for the trial date. This is a serious problem and one that requires to be addressed.

The distribution of business

Generally, two High Courts are set down for each Edinburgh sitting and five High Courts at Glasgow. Additional courts are arranged to cope with extra business. Because of the increasing length of trials, sittings tend to spill over and normally six courts are required in Glasgow and three in Edinburgh.

Since the rebuilding of Glasgow High Court there are six court rooms available and there is also a monthly sitting in Paisley.

Around 60% of High Court criminal cases in Scotland are heard at Glasgow High Court.

Edinburgh deals with cases from the Lothian and Borders, Tayside, Central and Fife, and sometimes cases transferred from other venues since Edinburgh has the most court space available and Justiciary can secure additional judges at short notice.

CHAPTER 16

Recommendations

1. A general review

I have suggested in the previous chapter that a broad review of the system should be considered.

2.The involvement of the trial advocate in marking

This is sufficiently important to recommend that an early change be considered.

Although at present 60% of solemn cases are tried before the High Court sitting in Glasgow, the High Court unit and the Advocate Deputes' room are both in Edinburgh. The reason for this is that the Law Officers are based in the same building and can be consulted there if necessary and it is felt that by having decisions made in Crown Office it encourages consistency in decision making throughout Scotland.

I do not suggest any change in the Crown Office High Court unit and the advocate deputes being based in Edinburgh but the quantity of work in Glasgow would justify consideration being given to establishing a satellite office in Glasgow, in close proximity to the High Court, to service cases to be heard there.

If cases for hearing in the High Court sitting in Glasgow were prepared by a section of the Crown Office High Court unit based there they could be marked in Glasgow by advocate deputes. This would allow the many advocate deputes who are engaged in trials there (some of whom are based in Glasgow) to mark cases, outside court hours, without having to travel to Edinburgh to do so.

It should make it easier to identify who is likely to be the trial advocate and, at least in the more complicated or sensitive cases, to ask them to read the papers at the outset and to do all the marking. Once an advocate depute is familiar with the case it should be possible with a modern communication system, such as a secure intranet, to keep the same advocate depute, when absent from Glasgow, informed of any developments. Someone who knows the case would then be giving all the instructions.

Additional benefits of such a change would be that the precognoscer, who will have an office in the general area, could be consulted and in death cases the pathologists who are based close to the High Court in Glasgow could also be consulted.

If such a suggestion proves practicable the member of the High Court unit based in Glasgow who indicted a difficult or sensitive case would be available to assist the trial advocate during the trial.

If it has not been possible for the advocate depute who marked the case to act as trial advocate at least the indicter, who knows the case, would be available to assist the trial advocate.

3.Marking no proceedings in murder

Although murder is the most serious crime in the criminal calendar the legal issues can be less complicated than they are in other crimes. As a result some murder cases are not treated as any different to other cases. I consider murder should always be treated with the same degree of importance as society in general attaches to it.

In every case of murder, whether or not the accused has been fully committed, I recommend that if an advocate depute intends to mark no proceedings or to defer proceeding against any of a number of joint offenders pending the result of the trial of one, this should be referred to a Law Officer or in an emergency to the Home Advocate Depute before an instruction is issued.

4.Where an advocate depute disagrees with the counter signer

If time permits where an advocate depute disagrees with the advice of the counter signer or the marking principal fiscal in a case such as murder a conference should be held at which the issues are discussed. If this is not possible the fiscal whose views are not accepted by the advocate depute should be given reasons if only in summary form.

The form in which instructions are given

5. All instructions should be recorded in writing by the advocate depute giving them. The instructions should be issued in sufficient detail to allow the person who has to comply with them to understand clearly what is required of them.

6.Supervision of precognoscers

The Crown Office and Procurator Fiscal Service Book of Regulations provides for close supervision by senior members of the legally qualified staff in the precognition of serious and difficult cases. The regulations also state that in serious cases where the opinion evidence of medical or other experts is particularly significant precognition should be carried out by an experienced member of the legal staff. These regulations should be followed and there should be sufficient staff to allow for this.

7.Training of precognoscers

A member of legal staff who has not received appropriate training should not be used to precognosce a serious case.

8.The counter signing fiscal

The fiscal depute who counter signs a precognition should be allowed time to read the entire precognition and to ensure that the precognitions are of a reasonable standard and that all lines of inquiry have been followed. The counter signer should be expected to make a significant contribution to the decision making process.

9.Review by the High Court unit

When the Precognition is being submitted to Crown Office to be passed to the trial advocate depute the precognoscer should bring to the attention of the indicter any new evidence that has come to light. The indicter should then decide if a review is necessary.

Footnotes

1 Appendix I - page 5

2 Transcript 9th March 1999

3 Montgomery v HM Advocate [2001] 2 WLR 779,PC

4 The Stephen Lawrence Inquiry Report by Sir William Macpherson CM 4262-1I

5 Race Relations (Amendment) Act 2000.

6 Narajan v London Regional Transport [2000] 1AC 501 at 511

7 Scottish Parliament Official Report Vol9 No5 Col413

8 Northern Ireland Legal Quarterly, September 1968. [Vol.19, No.3 at page 249]

9 Renton and Brown Criminal Procedure According to the Law of Scotland 6th Ed para.3-03

10 Montgomery v HM Advocate [2001] 2 WLR 779 at page 797

11 Criminal Procedure (Scotland) Act 1995 s 65(4)

12 Criminal Procedure (Scotland) Act s 65(7)

13 Criminal Procedure (Scotland) Act 1995 s.65(1)

14 Criminal Procedure (Scotland) Act 1995 s66(6)

15 Criminal Procedure (Scotland) Act 1995 s 78(1)

16 This was reported in an article by Kathleen Nutt, entitled "Where racism's brutal face is a fact of life for Asians" published in the Sunday Herald on 3rd December 2000.

17 During our meeting in Glasgow 16 February 2001

18 Appendix I - page 5

19 Appendix I - page 15

20 Appendix I - page 16

21 Appendix I - page 17

22 Criminal Procedure (Scotland) Act 1995 s.24 ss.(1) and (2)

23 Appendix III - pages 31 - 35

24 Appendix I - page 18

25 Appendix I - page 25

26 Kerr -v- HMA 1958 SLT 82; see also Coll, Petitioner 1977 SLT 58

27 This was the first day that he was in the office after Full Committal of Ronnie Coulter. It is also the date from which correspondence begins.

28 Appendix I - page 28

29 Appendix I - page 29

30 Appendix I - page 31

31 It is uncertain if the forensic reports did cover this pair of jeans as no label numbers are recorded in the Report.

32 Appendix I - page 32

33 Appendix I - page 33

34 Appendix III - pages 7 - 19

35 Appendix I - page 34

36 Appendix I - page 35

37 Appendix I - page 57

38 Date unknown

39 Appendix I - page 46

40 Contempt of Court Act 1981 section 4(2).

41 Petition to the nobile officium by the British Broadcasting Corporation (2 May 2001)

42 Appendix I - page 51

43 Appendix I - page 55

44 1946 JC 8

45 2000 SCCR 195

46 1999 SCCR 986

47 Appendix III - page 20 - 30

48 R v Lake, 64 Cr.App.R.172

49 1993 SCCR 382

50 1993 SCCR at page 392 and the Commentary therein

51 Gordon's Criminal Law (3rd. ed., published in 2000) paragraph 5.52.

52 1996 SCCR 388

53 That case seems not to have been referred to when the marking decisions were being taken but the issues that it raises were the focus of attention then. The case was debated during the course of the Inquiry and what follows reflects the discussion at the Inquiry.

54 There is no suggestion that this case was exceptional.

55 Figures provided by Crown Office

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