http://www.scotcourts.gov.uk/opinions/2005hcjac137.html
Police Lied about shoe size
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Osborne
Lord Johnston
[2005HCJAC137]
Appeal No: XC288/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in
THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case of
GEORGE McPHEE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
______
For the Appellant: Scott, QC, Shead; BCKM
For the Crown: Beckett, QC; Crown Agent
6 December 2005
Introduction
[1] In November-December 1985 the appellant was tried at Inverness High Court on 15 charges. Seven were charges of theft by housebreaking, six were charges of theft, one was a charge of assault and one was a charge of murder. We are concerned only with the murder charge. As amended at the outset of the trial, the charge was in the following terms:
"(6) on 24 September 1984 you did enter uninvited the house known as 'Dunrobin,' Culbokie, District of Ross and Cromarty and there assault Elizabeth Jessie MacKenzie or Sutherland, residing there, place your arm or hand around her neck, strangle her and did repeatedly cut and stab her on the neck and body with a knife and you did murder her."
[2] The murder was committed in the afternoon of the date libelled. The victim was a 36 years-old married woman. She had two children, one of whom, her 10 year old daughter, found her body on her return from school. This was a horrifying murder involving brutal violence.
[3] The police enquiry in this case was conducted by officers of the Northern Constabulary. The officer in charge of the enquiry was the late D Supt Andrew Lister. The scientific work was carried out by the forensic laboratory of Grampian Police. It was not until August 1985 that the appellant was arrested.
[4] The appellant lodged a special defence of alibi to the effect that at the relevant time he was in the Dundonnell-Braemore area with an associate, Colin Hawkins; but he withdrew that defence during the trial and substituted a special defence of incrimination in which he accused Hawkins of the murder. He was convicted by a majority verdict and sentenced to life imprisonment with a recommendation by the trial judge, Lord Hunter, that he should serve a minimum period of 25 years imprisonment. This recommendation was based on the nature of the injuries inflicted on the deceased.
[5] The appellant served 171/2 years of this sentence before being given interim liberation some months after the lodging of the Commission's referral.
[6] The Crown has conceded that the conviction cannot stand. It is for this Court to decide whether that concession is well-founded. In our opinion, it is.
The essential evidence
[7] The Commission has given us a thorough analysis of the evidence. We need not rehearse it in detail. It is sufficient to say that there was no forensic evidence linking the appellant to the deceased, to the murder weapon or to the locus. The Crown relied on (1) the eye witness evidence of Hawkins, (2) the evidence of a prisoner named Trevor Proudfoot that the appellant had confessed to the murder in a conversation with him when they were sharing a cell, and (3) evidence of footprints found outside and inside the house that were said to be linked to the appellant.
The evidence led before the withdrawal of the alibi
The footprint evidence
[8] On the day after the murder DS Ross and DC Birnie of the Identification Branch photographed four footprints in the vegetable patch in the garden. They made a cast of the most detailed of these. DS Ross concluded that the positions of the footprints indicated that the person who made them was running. Footprints made with soil were found on the carpet of the bedroom where the body was found.
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