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.
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
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
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.
Terms of reference of the
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
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.
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
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
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.
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.
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 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
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 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
"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
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
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".
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 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
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
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
The events of 4th
This description is based on transcripts of evidence given
at the trials where these are available, precognitions and police
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
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
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
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
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
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
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
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 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.
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.
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
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.
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 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
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
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
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
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
"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.
Preparation of the Precognition
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
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
"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
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
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
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
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
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."
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
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
In any event, as will be suggested later in this report, her
recommendation was along the correct lines.
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
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
The first Trial
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
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.
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.
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).
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.
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
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.
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.
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.
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
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 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
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
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.
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.
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
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
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
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
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
"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.
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
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
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
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.
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 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.
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
8. The baton was found in a suspicious place, namely concealed
in the bag of a Hoover.
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
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.
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.
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
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.
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.
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
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.
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
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
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
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
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
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.
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
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
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
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
1 Appendix I - page 5
2 Transcript 9th March 1999
3 Montgomery v HM Advocate  2
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
 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 
2 WLR 779 at page 797
11 Criminal Procedure (Scotland) Act
1995 s 65(4)
12 Criminal Procedure (Scotland) Act
13 Criminal Procedure (Scotland) Act
14 Criminal Procedure (Scotland) Act
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
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
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
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