APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Carloway Lord Reed	[2011] HCJAC 33 Appeal No: XC396/06 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by MATTHEW STRANNIGAN SMITH GEORGE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Di Rollo Q.C.. Gianni; Ormistons Law Practice, Glenrothes

Respondent: Prentice Q.C., Solicitor Advocate, A.D.; Crown Agent

19 April 2011

The Background Circumstances

[1] The appellant, along with John Penman Muldoon, faced an indictment containing 85 charges, on 18 of which he was convicted, after trial. Subsequently, a sentence of 10 years imprisonment was imposed upon the appellant. After deletions by the Advocate depute and deletions by the jury, the terms of the charges upon which the appellant was convicted were as follows:

"(1)  on various occasions between 12 October 1978 and 5 February 1981, both dates inclusive, at Kerelaw School, Kerelaw Road, Stevenston and at the area of Portencross, Ayrshire or elsewhere to the prosecutor unknown you...did assault W L S, born 10 October 1964...then a pupil at said school and push him down a set of stairs there, repeatedly punch him on the head and body, strike him on the head with a paintbrush and with your open hand, seize him by the jaw and twist same, all to his injury;

(3)  on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did assault G M, born 1 September 1964...then a pupil at said school and repeatedly punch him on the head and body and repeatedly kick him on the body, strike him on the head and body with your open hand, seize him by the hair and clothing, strike him and throw him against walls and doors, all to his injury;

(4)  on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did assault G M, born 1 September 1964...then a pupil at said school, seize his hand and compel him to handle your private member and masturbate him, seize his hair, attempt to insert your private member into his mouth and compel him to suck same, repeatedly strike him on the head with your open hand, masturbate in his presence and attempt to penetrate his hinder parts all to his injury;

(5)  on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did conduct yourself in a disorderly manner, make indecent remarks, expose your private member in the presence of G M, born 1 September 1964...then a pupil at said school and to other pupils at said school whose identities are to the Prosecutor meantime unknown, place said G M in a state of fear and alarm for his safety and you did commit a breach of the peace;

(6)  on one occasion between 10 April 1979 and 1 September 1981, both dates inclusive, at Kerelaw School...you...did assault R S N, born 3 May 1965...then a pupil at said school and seize him and push and pull at him, and throw him against a wall and window, all to his injury;

(7)  on one occasion between 17 October 1979 and 31 December 1980, both dates inclusive, within a motor vehicle at Glasgow Airport, Paisley you...did assault S R or J, born 18 November 1964...then a pupil at said school and repeatedly punch him on the head and body, seize him by the clothing, all to his injury;

(8)  on an occasion between 17 October 1979 and 31 December 1980, both dates inclusive, the precise date being to the Prosecutor unknown, at Kerelaw School...you...did assault S R or J, born 18 November 1964...then a pupil at said school and insert your private member into his mouth;

(9)  on various occasions between 29 March 1979 and 31 December 1979, both dates inclusive, at Kerelaw School...you...did assault D P E, born 17 February 1966, ...then a pupil at said school and repeatedly punch him on the head and body, strike him on the head with your open hand, seize him by the neck and compress same, all to his injury;

(10)  on various occasions between 29 March 1979 and 31 December 1979, both dates inclusive, at Kerelaw School...you...did use lewd, indecent and libidinous practices and behaviour towards D P E, born 17 February 1966, ...then a pupil at said school and make indecent remarks to him;

(11)  on an occasion between 25 January 1978 and approximately 14 September 1979, both dates inclusive, at Kerelaw School...you...did assault A M M, born 24 February 1965, ...then a pupil at said school and repeatedly strike him on the head and body with your elbow, to his injury;

(12)  on an occasion between 25 January 1978 and approximately 14 September 1979, both dates inclusive, the precise date to the prosecutor unknown, at Kerelaw School...you...did assault A M M, born 24 February 1965...then a pupil at said school and repeatedly insert your private member into his mouth to the emission of semen and repeatedly strike him on the head with your open hand, to his injury;

(13)  on various occasions between 25 January 1978 and approximately 14 September 1979, both dates inclusive, at Kerelaw School, ...you...did conduct yourself in a disorderly manner, make indecent remarks, expose your private member in the presence of A M M, born 24 February 1965...then a pupil at said school and in the presence of other pupils whose identities are to the Prosecutor meantime unknown and you did commit a breach of the peace;

(14)  on various occasions between 5 April 1979 and 18 June 1981, both dates inclusive, at Kerelaw School...you...did assault J A T, born 18 June 1965 ...then a pupil at said school and repeatedly punch and kick him on the head and body and strike him on the head with your open hand, all to his injury;

(20)  on an occasion between 18 September 1986 and 15 April 1989, both dates inclusive, at Kerelaw School...you...did, while acting along with others, assault S MacD, born 15 April 1971... , then a pupil at said school and throw an apple at him whereby said apple struck him on the head and attempt to gouge his eyes with your fingers, all to his injury;

(21)  on an occasion between 18 September 1986 and approximately 15 April 1989, both dates inclusive, the precise date being to the Prosecutor unknown, at the house occupied by you at 130 Greenock Road, Largs or elsewhere to the Prosecutor unknown you...did assault S MacD, born 15 April 1971... then a pupil at Kerelaw School, ...place a blindfold over his eyes, and repeatedly insert your private member into his mouth;

(24)  on various occasions between 4 November 1986 and 31 August 1988, both dates inclusive, at Kerelaw School...you...did assault M P, born 1 August 1972...then a pupil at said school and repeatedly punch him on the head and body and kick him on the body, seize him by the throat and compress same, strike him on the head and body with a ruler, seize him by the hair, force his arms up his back and strike him with sports balls, all to his injury;

(25)  on various occasions between 4 November 1986 and 31 August 1988, both dates inclusive, at Kerelaw School...and in a motor car on various country roads in the Stevenston area you...did assault M P, born 1 August 1972, then a pupil at said school and handle his private member, insert your private member into his mouth and compel him to suck same and handle your private member;

and

(45)  on various occasions between 9 February 1993 and 1 August 1995, both dates inclusive, at Kerelaw School...you...did assault CGG, born 29 June 1978...then a pupil at said school and seize her by the clothing, and strike her on the head with your open hand, all to her injury."

[2] The appellant has now appealed against his conviction on a number of grounds. Certain of the grounds originally tendered have been withdrawn and, in relation to others, leave to appeal has been refused. The grounds of appeal that are before the court, in respect of which leave to appeal has been granted, are in the following terms:

Ground 1A:

"The purported disclosure to the defence of the documents contained within the Kerelaw Document Room at Ayr Police Office was wholly inadequate and resulted in a miscarriage of justice in respect that the restrictions imposed by the Crown and Police under which the defence were permitted to view documents: (i)  prevented trial counsel, agent and appellant attending together and searching for and viewing documents; (ii)  ensured that the Police and the Prosecution knew what documents had been requested and viewed and were considered important enough by the Defence to copy; (iii)  entailed that all documents copied by the Defence would be sent to the prosecution and included as Crown productions; (iv)  meant that conversations between counsel, agents and appellant whilst in the Kerelaw Document Room were monitored by a police officer; (v)  was such that documents were only made available in respect of persons where Defence could quote a date of birth."

Ground 2:

"The failure of the Crown to disclose to the Defence copies of all statements, including statements made to Social Work investigators by the complainers in respect of their complaints about the conduct of staff, including the appellant, at Kerelaw School prior to the trial of the appellant, in the hands of the police or produced by the investigation into alleged abuse of children at Kerelaw School that was carried out in 2004 by Glasgow City Council working with the police ('the 2004 Kerelaw Inquiry') resulted in a miscarriage of justice. In particular it is known that S MacD (Crown witness 14) gave a statement to the Social Work Investigative Team on 10 October 2004 ('the 2004 MacD statement') which was not disclosed. It is believed that this statement was taken as part of the 2004 Kerelaw Inquiry. The 2004 MacD statement was inconsistent with the evidence given by Mr MacD at the trial on Thursday 23 February 2005 and with the terms of Mr MacD's disclosed police statement dated 11 January 2005 in that no mention was made in the 2004 MacD statement of a sexual assault by the appellant at the appellant's home and the only reference to the appellant's home was 'Matt George had a big white house in Largs, bigger than any of the other staff had. Mr MacD remembers going there and getting juice. He met his wife and two daughters, who he described as beautiful.' The 2004 MacD statement also contained considerable material that would have been of assistance to the defence in cross examination. It contained details of sexual abuse of Mr MacD prior to his arrival at Kerelaw, details of three other teachers who had taken Mr MacD to a football match and three other teachers who had taken Mr MacD to their homes. If it had been disclosed it could have been used to discredit the evidence of Mr MacD."

Ground 3:

"The failure by the Crown to disclose to the defence until the close of the Crown case a list of 102 named individuals (which included the appellant, 22 defence and 3 Crown witnesses) under investigation or suspicion in relation to assaults on pupils allegedly committed at Kerelaw School resulted in a miscarriage of justice. The Crown had possession of such information long before the trial against the appellant began. As a result of this failure the appellant was deprived of the opportunity to investigate the circumstances of the case and in particular the opportunity to (a)  ascertain whether false allegations of a similar nature had been made by any of the complainers in the instant case against any of the named individuals on the list (b)  obtain information which could have been used to test the reliability of Crown witnesses or to undermine their credibility and (c)  consider incriminating others on the list. The list of persons under suspicion was necessary for the proper preparation of the defence case and may have made a material difference to conduct of the case. On 12 August 2008 the Crown disclosed to the appellant's agents a schedule of 55 named persons against whom complaints or allegations of criminal offences at Kerelaw were made prior to the trial of the appellant including details of the broad nature of each allegation, whether a complaint was made and whether the matter had been reported. The schedule was material in that the failure to disclose said schedule prior to trial deprived the appellant of the opportunity described above."

Ground 4:

"The appellant's defence was not properly presented in that no attempt was made to obtain the evidence on commission of George Torrance, the former headmaster of Kerelaw School when it became clear during the Crown case that Mr Torrance would be unable for reasons of health to travel to the trial in Edinburgh to give evidence for the appellant. Mr Torrance was headmaster of Kerelaw School from 1970 to 1981 a period which cover (sic) charges 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 which are the majority of charges of which the appellant was convicted. Mr Torrance was responsible for the management of the school during the period of these charges, led the institution and operated an open door policy as to complaints. Mr Torrance was precognosced for the defence in November 2005. The evidence of Mr Torrance would have been materially significant to the presentation of the appellant's defence that these offences did not occur and had indeed could not (sic) have been kept secret at the school during the time he was headmaster. The appellant gave instructions that Mr Torrance be called as a witness. Mr Torrance was to have been a witness on Monday 27 March 2006 but prior to 24 March 2006 Mr Torrance informed the defence in a telephone call that he was unable to attend and had a certificate from his doctor. The opportunity existed in terms of Section 272(2) for trial counsel to apply for the appointment of a commissioner to take the evidence of Mr Torrance who by reason of his illness was unable to attend the trial diet. Such an application was not made. It is submitted that this defective representation resulted in a miscarriage of justice in respect of charges 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14."

Ground 5A:

"The appellant suffered a miscarriage of justice in respect that trial counsel failed to cross examine Crown witness 16 MP on the inconsistency between his evidence in chief on Tuesday 14 February 2006 in respect of charges 24 and 25 and the contents of Crown production 136 which bare (sic) to be Mr P's school records. In the trial Mr P gave evidence that he had suffered repeated physical and sexual abuse while he was a pupil at Kerelaw School. The appellant's defence was that he did not commit these offences and that Mr P was either lying or mistaken as to the identity of the assailant. Crown production 136 included: (i)  Mr P's individual log for the week ending 20 November (probably of 1987) 'M now says if he can't get to school of his choice (Ayr Academy) he would rather continue in Kerelaw than go elsewhere'. The witness should have been challenged about the inconsistency between his evidence and his reported desire to remain at Kerelaw School when an alternative plainly existed; (ii)  Mr P's review report dated 15 January 1988 reports on the subject of 'schooling. Whether it is appropriate for M to continue at Kerelaw until May. Ayr Academy was initially proposed but since the (sic) M and his family have said it would be better if he continued in Kerelaw to allow exams to be taken.' The witness should have been challenged about the inconsistency between his evidence and his reported to (sic) desire to remain at Kerelaw when an alternative existed. Cross examination would have materially assisted in attacking the credibility and reliability of Mr P. It is submitted that this defective representation resulted in a miscarriage of justice in respect of charges 24 and 25 (and also charges 20 and 21 which are dependent upon them by virtue of the Moorov doctrine).

Ground 5C:

"The appellant suffered a miscarriage of justice in respect that his legal representatives failed to seek a commission and diligence for the recovery from the relevant local authority of that part of the principal educational and social work records of the complainers that tended to show (a)  whether each complainer had any history of making allegations against other persons of a nature similar to the allegations against the appellant (b)  how each complainer had reported their views of their time at Kerelaw School to teachers, social workers or carers while they were pupils at the school (c)  how each complainer progressed at Kerelaw School during their time at the school. In the light of the absence of any significant records prior to 1984 in the documents formerly held at Kerelaw Document Room at Ayr Police Office and in particular any educational or school records in respect of complainers: W L S, G M, R N, S R or J, D P E, A M M and J A T there was no other mechanism available to the appellant to obtain material that might have assisted in attacking the credibility and reliability of these complainers and other Crown witnesses. Reference is made to agents' letters dated 11 January 2005 and 9 March 2005. It is submitted that the failure to seek recovery of such items resulted in a miscarriage of justice. Throughout the preparation for the trial, during the trial and up to and including 20 March 2006 the appellant's trial counsel repeatedly maintained the importance of agreeing a joint minute with the Crown stating that significant numbers of school records and other documents from the 1970s and early 1980s was simply not available to the defence. Reference is made [to] agents' letter to the Crown dated 27 January 2006. No such joint minute was entered into."

Ground 7:
"In respect of charge 7, 8, 9 and 10 the learned trial judge wrongly admitted hearsay evidence from Crown witness 3, Francis Tran and Crown witness 62, Kathryn Mary Jack which hearsay evidence included the terms of Crown production 109 which was read in full to the jury. The evidence consisted of detailed reports from Francis Tran and Kathryn Mary Jack as to what D E and S J alleged happened to them many years before the conversations described. The learned trial judge directed that (at pages 9 and 10 of the transcript) that this evidence was admissible as follows:

'Evidence about what a complainer told someone about what had allegedly been happening to him or her does not provide corroboration for what the complainer is saying and this is because the one source there is the complainer. There is no other source of the evidence. Now, just to give you an idea of where this might apply, it might apply for example or it does apply to the evidence from Francis Tran about what D E told her; Counsellor Kathryn Jack about what S R or J said, ...now all I am saying, ladies and gentlemen, is that such evidence, that is what Francis Tran told you, what Kathryn Jack told you...what lawyers told you and so on such evidence does not provide corroboration for what the complainer is saying. What you can use such evidence for is as an aid when assessing the complainer's reliability and credibility. For example has the complainer been consistent or did the complainer show emotions or a reaction at certain moment (sic), for example when visiting Kerelaw School and if so, what?'

It is submitted that this was a misdirection in that the evidence referred to was inadmissible. Its admission resulted in a miscarriage of justice in respect of charges 7, 8, 9 and 10 and also charges 1, 3, 6, 11 and 14 dependent upon them by virtue of the Moorov doctrine."

Ground 8B:

"That the learned trial judge directed the jury there were certain groups of charges to which the Moorov doctrine had to be applied to convict the accused. It is submitted that the evidence led in respect of the groups of charges set out below was such that there was an insufficient link in terms of character, circumstance and place to include those charges in those groups and to thus permit a jury to hold that there was an underlying unity of purpose so as to constitute a single course of criminal conduct on the part of the accused. In particular: ...B.  In respect of the group comprising charges 20 and 24 the character, circumstance and place of the offence were different in each charge. In respect of charge 20 Crown witness 14 S MacD gave evidence of a physical assault by the appellant in the school gym by fists and throwing an apple whilst in respect of charge 24 Crown witness 16 MP gave evidence of the appellant the throwing of balls at him in the gym and of opportunistic physical assaults in corridors of the schools (sic). It is submitted that in respect of this group there was an insufficient link in terms of character, circumstance and place to permit a jury to hold that there was an underlying unity of purpose so as to constitute a single course of criminal conduct on the part of the accused."

Ground 9:

"In relation to charge 45 the appellant was convicted that:

'on various occasion between 9 February 1993 and 1 August 1995 both dates inclusive, at Kerelaw School, Kerelaw Road, Stevenston you MATTHEW STRANNIGAN SMITH GEORGE did assault C G G, born 29 June 1978...then a pupil at said school and seize her by the clothing...and strike her on the head with your open hand, all to her injury;'

The evidence in support of this charge came from A-M B and C G. The evidence from those witnesses did not permit a finding of assault and in any event did not support any of the specification in the libel of the charge namely 'seize her by the clothing...strike her on the head with an open hand, all to her injury'. In the circumstances the verdict of the jury must be quashed."

Ground 11:

"A joint minute was entered into between the Crown and defence without the appellant's instructions. The purpose or consequences of entering into the joint minute was not explained to the appellant. The appellant did not want to accept details of dates of the each complainers' (sic) attendance at Kerelaw School and wished to put the Crown to proof of these dates. A considerable amount of records from the school were missing. Proof of the dates of the attendance of the complainers and other witnesses as pupils of the school, was critical to the Crown case. These dates were a fundamental aspect of the Crown case and to the application of the Moorov doctrine. The terms of the joint minute are contrary to the information contained within the School Entry and Exit Ledger - Crown production 128. The appellant was never given sight of Crown production 128 by his defence team despite repeated requests. The terms of the joint minute contradicted the evidence of Crown witness 9 A M M as to the dates he was at Kerelaw School and the evidence of Crown witness 7 S J who said he knew M at Kerelaw School. The Crown did not seek to lead evidence of the dates contained within the joint minute from Crown witnesses who might speak to the records of Kerelaw School in general and Crown production 128 in particular. It is believed that prior to the commencement of the trial and quite possibly at the preliminary hearing on 17 January 2006 indications were given to the Crown that the appellant would agree a joint minute when no instructions had been given in that regard and the appellant had not seen Crown production 128. At the close of the Crown case the libel in charges 4, 11, 12, 13 and 21 was extended by amendment by the Crown to meet the dates in the joint minute. It is submitted that this defective representation resulted in a miscarriage of justice in respect of all the charges for which the appellant was convicted and the conviction should be quashed".

Ground 12:

"There was no evidence in the trial of injury to the complainers in respect of charges 1, 3, 4, 6, 7, 9, 11, 12, 14 and 24. It is submitted that in the absence of evidence of injury the aggravation of 'to his injury' falls to be deleted from the end of each of charges 1, 3, 4, 6, 7, 9, 11, 12, 14 and 24."

Ground 13:

"With regard to charge 24 the learned trial judge misdirected the jury in respect that (a)  at page 50 (line 6) she gave a direction that M P gave evidence that he had been locked up in the gym and had golf balls hit at him by staff, including the appellant, using golf clubs when in fact P's evidence was that the golf balls had been thrown by hand and (b)  directed the jury that P's evidence of how he was assaulted by appellant could be corroborated by the evidence of a forensic scientist, Ruth Ramage, and Daniella Benson (referred to also at page 44). The evidence of the forensic scientist contained in her report dated 6 September 2005 (Crown production 127) and Daniella Benson was not capable of corroborating the evidence of M P that he was assaulted in the manner indicated by him. These misdirections resulted in a miscarriage of justice in relation to charge 24. The verdicts (sic) of the jury in respect of charges (sic) 20 dependent upon charge 24 by virtue of the Moorov doctrine, should be accordingly be (sic) quashed."

Ground 14:

"The appellant suffered a miscarriage of justice in respect that fresh evidence has now become available that the cladding of the gymnasium examined by Crown witness 110 Ruth Ramage in respect of charge 24 was installed after the offence described in charge 24. The learned trial judge directed the jury that Crown witness 16 M P's evidence of how he was assaulted by appellant with golf balls in the gymnasium could be corroborated by the evidence of Dr Ramage. Reference is made to additional ground of appeal 13. The results of Dr Ramage's investigations were set out in Crown production 127 a copy of which is attached to this ground of appeal. It is now clear that the panelling examined by Dr Ramage was not in the gymnasium at the time of the events described in charge 24 and was not in fact installed until 1991 at the earliest. Accordingly the evidence of Dr Ramage cannot not (sic) corroborate the evidence of Mr P in respect of charge 24.

At the trial the appellant had not remembered that said panelling within the Kerelaw School Gymnasium was changed in 1991. On 3 November 2008 the appellant visited a former colleague Ruth Baillie in East Kilbride. Mrs Baillie had been employed at Kerelaw School as a domestic supervisor. Mrs Baillie had been cited as a witness at the trial as Crown witness 63. She was not called to give evidence by the Crown. Her police statement does not relate repairs and changes to the gymnasium. A copy of her statement is attached to this ground of appeal. On 3 November 2008 the appellant explained the extent of his convictions to Mrs Baillie and she informed him that the panelling of the gymnasium had been replaced after 1987. She suggested that the appellant contact Christopher Harry Johnson...Mr Johnson was appointed Deputy Headmaster at Kerelaw School in 1982. An affidavit from Mr Johnson was taken on the instruction of counsel on 19 November 2008. Said affidavit is attached to this ground of appeal. Reference is made to said affidavit. Mr Johnson was not cited as a Crown witness. In light of the large number of charges on the indictment covering a period of more than 25 years with a substantial number of loci for offences it is submitted that this explanation is a reasonable explanation of why this evidence was not heard in the trial.

It is now clear that the evidence of Ms Ramage about marks on the cladding of the gymnasium and her opinion that said marks could have been caused by golf balls is irrelevant and cannot provide any corroboration in respect of charge 24. Reference is made to additional ground of appeal 13. There was accordingly a miscarriage of justice in respect of charge 24. The verdicts of the jury in respect of charges (sic) 20 dependent upon charge 24 by virtue of the Moorov doctrine, should be quashed."

[3] The circumstances of the case and the offences, as outlined by the trial judge in her Report to this court, were as follows. The appellant was born on 2 June 1949. In early 2006, when aged 56, he stood trial in Edinburgh High Court together with a co-accused John Muldoon. They were charged with various incidents of physical and sexual abuse of pupils at Kerelaw School, which was a residential school, originally a List D school, run by Strathclyde Regional Council and latterly by Glasgow City Council. The school contained a range of pupils: some had family problems which meant that they had no home to go to; some had truanted from school; some were from other residential homes; and some had been involved in criminal behaviour, such as dishonesty, violence, or in relation to controlled drugs.

[4] The indictment was lengthy, running to 85 charges. The trial lasted from Tuesday 7 February 2006 until Thursday 20 April 2006.

[5] The appellant was an art teacher at Kerelaw School. He sometimes assumed the rôle of carer in the pupils' living quarters, depending on staffing levels. He had an interest in martial arts. The appellant was convicted of a variety of sexual offences and physical assaults perpetrated on male pupils, aged about 14 and 15, resident at Kerelaw School during the late 1970s and the 1980s.

[6] The sexual offences ranged from breaches of the peace and lewd and libidinous behaviour, such as exposing himself to boys in the shower, boasting to boys about his sexual prowess and his private parts, and making sexual innuendos, to serious indecent assaults on pupils, following a pattern of putting his penis in a pupil's mouth, having oral sex with a pupil to the point of ejaculation, touching a pupil's private parts and inducing him to touch his private parts, masturbating himself in a pupil's presence, being masturbated by a pupil, and, on one occasion, attempting sodomy on a pupil.

[7] The physical assaults also occurred in the late 1970s and in the 1980s, the latest date being August 1988. The appellant used his martial arts techniques on pupils, sometimes for the purposes of discipline and sometimes for no obvious reason. He also used more traditional methods of attack. The evidence disclosed punches or slaps to pupils' heads, legs and bodies; a punch on the nose; sticking the sharp end of a paintbrush into the top of a pupil's head; pushing a pupil downwards; placing pupils in the gym and striking golf balls at them with a golf club; karate chops to a pupil's ear, or neck, or arm, or leg; jabbing fingers into a pupil's ribs; grabbing a pupil's Adam's apple in a pincer grip, such that the pupil was unable to speak or breathe or move; hitting a pupil with his elbow; twisting pupils' arms up their backs; finding "pressure points" and squeezing them to disable pupils; gouging at pupil's eyes; pulling pupils' hair; kicking pupils; hitting pupils with a ruler; and taking a pupil by the throat.

[8] It was clear from the witnesses' evidence and demeanour that many of them had, as children, been very afraid of the appellant. They had suffered ordeals at his hands. Some of the incidents were nightmarish. As pupils in the school, they had no one whom they felt they could trust and confide in, especially as they felt that they were unlikely to be believed. They had no obvious means of escape; if they ran away, the police returned them to Kerelaw, often to the appellant personally. The fear, unhappiness, pain and humiliation suffered by some of the pupils as children at Kerelaw had affected many of them throughout their adult lives.

[9] In view of the character of the allegations made in connection with this appeal against the former legal advisers of the appellant, which are to be found in grounds of appeal 4, 5A, 5C, and 11, the court invited those advisers to furnish responses to those allegations, if so advised. All of them took that opportunity of doing so. The responses from Mr J. Graham Robertson, Advocate, who acted for the appellant in connection with the preparation of his defence and who represented him at the trial are numbers 13, 20, 31 and 55 of the appeal process. They are dated 12 August 2008, 10 November 2008, 21 November 2008 and 24 November 2009 respectively. The responses of junior counsel for the appellant, Mr Stephen O'Rourke, Advocate are numbers 24 and 52 of the appeal process and are dated 14 November 2008 and 9 November 2009 respectively. The responses of Mr Andrew T. F. Gibb, a partner in Messrs Balfour + Manson LLP, who acted as solicitor to the appellant are numbers 23, 27 and 54 of the appeal process and are dated 13 November 2008, 13 November 2008 and 25 November 2009 respectively.

[10] In view of the contents of grounds of appeal 1A, 2, 3, 4, 5A, 5C, 11, 13 and 14 it had been recognised that those grounds of appeal could not be the subject of determination in the absence of the relevant evidence. Accordingly, by interlocutor of 7 January 2010, the court granted warrant to cite certain persons as witnesses in the appeal. These were: the appellant himself; Yvonne George; Christopher McCabe; Mida McCabe; Lisa McKnight; Robert McKnight; George Torrance and Christopher Johnstone, on behalf of the appellant. Andrew T. F. Gibb, Solicitor; Mr Graham Nelson, Solicitor; Mr J. Graham Robertson, Advocate; and Mr Stephen O'Rourke, Advocate were authorised to be cited on behalf of the respondent.

The Appeal Hearing
The Evidence for the Appellant

[11] Counsel for the appellant began by leading evidence in chief from the appellant himself, who described his domestic circumstances and career. He had been married for 40 years and had two daughters. He had worked at Kerelaw School since mid 1975, but was suspended on 21 June 2004. He had qualified in 1984 as an art teacher; before that he had been an art instructor. As regards the allegations made against him in the indictment, he stated that he had never sexually or physically abused any pupil.

[12] When the allegations which ultimately featured at the trial were brought against him he obtained legal assistance through the Educational Institute of Scotland; that took the form of the services of Messrs Balfour + Manson LLP, Solicitors, and, in particular, of Mr Andrew Gibb, a partner in that firm. Counsel were instructed at a later stage in 2005. The appellant said that he had been put on petition in 2004 and his trial commenced on 23 February 2006. Mr Graham Robertson of counsel had been instructed and, at a later stage, Mr O'Rourke.

[13] One feature of the case was that a large volume of relevant documentation, consisting in records of different kinds, existed. The appellant was anxious that violent incident forms should be located and examined. The appellant learned that records prior to 1984 were not available. He went on to explain the nature of the documentation that he believed had existed. For example, an allegation had been made against the appellant concerning an incident within a motor vehicle at Glasgow Airport. There should have existed records relating to any involvement on the part of the appellant in a journey there.

[14] As the trial approached, the appellant stated that he had had a total of seven meetings with counsel; sometimes no solicitor was present at these meetings. He had never been shown all of the documentary material supposedly available. He did see statements in writing made by complainers. The situation regarding documentation was not wholly satisfactory. The appellant had not seen the entry and exit book, Crown production 128, until after the trial had ended. From time to time the appellant raised issues with Mr Gibb concerning documentation, but did not always obtain responses. He had discussed documentation with Mr Graham Robertson, when he made the point that it was difficult to defend himself without access to documentary records. He wanted to see every piece of paper relating to the complainers.

[15] Much of the documentation relevant to the school had been stored at Ayr Police Office. The appellant himself had visited there on two occasions; on the first he attended with Mr Robertson, on the second with Mr Graham Nelson, a trainee solicitor working in Balfour + Manson. On the first occasion certain conditions had been imposed by the police regarding access to the documentary material. Police officers had been present throughout the visit; the appellant claimed that Mr Graham Robertson had felt intimidated by the situation encountered. He claimed that Mr Robertson had said that he did not intend to return. The appellant had supposed that there might have been an index of the documentation present, but that was not the case. The second visit was more productive in respect that, along with Mr Nelson, the appellant had made requests for notes relating to certain pupils and was able to examine them. It was very difficult to know exactly what material was kept at the police office. In some instances he had made requests to the police for particular items, but they were declined. He had not understood that there were means whereby documentary material might be recovered. Mr Graham Robertson's view in December 2005 was set out in number 71 of the appeal process, file 3, page 240. In relation to documentation the appellant was also referred to pages 220, 225, 188, 88 and 22 to 23 of the same file. The appellant had been concerned that he was not obtaining access to files which he thought were important concerning pupils who had attended the school at an earlier stage. He testified that he had not stated that he wished no more documentary recovery and no more delay in the commencement of the trial because of the stress on his family that delay caused. He considered that it had not been his responsibility to make requests for particular documents.

[16] The appellant said that a Mr Torrance had been the headmaster at Kerelaw School when he had commenced working there. The appellant regarded him as being at the top of the list of his witnesses. However, in the end, he did not appear as a witness, although the appellant believed that he would do so. He had even offered to drive him to Edinburgh, recognising his age. No one had explained to the appellant why Mr Torrance was not to be led in evidence; in particular, he was never told that he was too ill to attend court. There had been a discussion, however, concerning the possible preparation of an affidavit by him, or the arranging of a video link. There had been discussion regarding witnesses between the appellant and his advisers at the time of the trial. It had been indicated to the appellant that certain witnesses were not to be called. The appellant affirmed that he had not instructed that Mr Torrance should not be called, since he regarded him as an important source of evidence. The appellant had not been shown the medical certificate that had been issued relating to the inability of Mr Torrance to attend the court. Referred to the file note on page 471 of volume 5 of Balfour + Manson's file, the appellant accepted that Mr George Torrance was not a high priority as a witness. However, the appellant remained of the view that Mr Torrance's evidence was important.

[17] Turning to what might be described as the joint minute issue, raised in ground of appeal 11, the appellant explained that when he first saw the indictment he recognised that certain dates were wrong in relation to certain pupils, in particular W L S and S MacD. This gave rise to a wider concern on the part of the appellant regarding the dates between which certain pupils had attended the school. Against that background, a joint minute, item 3 in volume 1 of the Crown documents, number 69 of the appeal process, had been signed by the Advocate depute and counsel for the appellant. The joint minute was lodged during the course of the trial on 22 March 2006. The appellant complained that before that, no solicitor or counsel had taken him through the 45 paragraphs in the joint minute, which dealt with the dates between which pupils had attended the school. There had been some discussion regarding these matters but the appellant said that he was never going to accept dates relating to particular pupils unless he had seen satisfactory documentary material to vouch such dates. Page 184 of volume 2 of Balfour + Manson's file, 71 of the appeal process, showed that the appellant had expressed concerns regarding the possibility of agreeing dates of admission and discharge. Dates were to be agreed only if the appellant's advisers were satisfied about them. Pages 3 to 8, 331 and 332 of the same file were relevant to the matter of records relating to particular pupils who featured in the indictment. The appellant accepted that he must have seen the table which was referred to at page 328 of the file. He accepted that it was proper for uncontroversial evidence to be agreed, as appeared from page 184 of the file. Pages 220, 224 and 225 of volume 3 of Messrs Balfour + Manson's file, 71 of the appeal process, were highlighted as showing the continuing concern of the appellant relating to the availability of documentary records. It was accepted that, prior to the commencement of the trial there had been ongoing consideration of the possibility of a joint minute for the purposes described. Reference was made to pages 99 to 108 of volume 3 of Balfour + Manson's file, number 71 of the appeal process. The matter of possible agreement of dates of admission and discharge had been referred to Mr Graham Robertson by the letter dated 12 January 2006, page 97 of Balfour + Manson's file volume number 3. The appellant agreed that the same documentation as had been sent to Mr Robertson had been sent to him also, as appeared from page 94 of that file, although he had no recollection of the matter. A preliminary hearing had been held in the case on 17 January 2006. Messrs Balfour + Manson's file note relating to that, to be found at pages 541 and following in volume 5 of their file appeared to indicate that dates for admission and discharge of pupils were the subject of agreement and would appear in a joint minute. However, the appellant had no recollection of what was said at this preliminary hearing and insisted that he had not given instructions for agreement of these matters. Pertinent to this matter also was a file note at pages 85 and 86 of volume 3 of Balfour + Manson's file relating to the same preliminary hearing. There it was indicated that a joint minute concerning dates of admission and discharge could be agreed, subject to certain amendments which had been agreed with the Advocate depute. The appellant insisted that there was nothing in Messrs Balfour + Manson's files which showed that he had instructed the agreement of the relevant dates. At page 479 of volume 5 of Balfour + Manson's file there was a further reference as at 21 March 2006, the date on which the leading of the Crown's evidence was concluded, to the agreement of a joint minute. The appellant insisted that the minute had not been gone through with him. At page 476 of the same file, in a file note, there was a narrative to the effect that Mr Graham Robertson had explained the purpose of the joint minute to the appellant; that minute had been read to the jury on 22 March 2006, as appeared from the court minutes of that date. The appellant accepted that he had heard the minute read out to the jury and did not object to it. In the face of these documents, the appellant insisted that his legal advisers had known his position; if they had agreed matters, it had been done without his consent.

[18] In cross examination, the appellant agreed that he was an articulate person. He had tried to be proactive in the preparation of his defence. He had faced a total of 49 charges; he was convicted on 18 and acquitted on 31. In the main the charges against him had been, first, alleged sexual assaults, and, second, alleged physical assaults. As to the first category, his defence had been that things alleged had never happened and that the complainers who asserted that they had were lying. As regards the second category, his defence had been that the things alleged did not happen and that the complainers were lying; in one case alone there was what could be described as justified restraint. Between 1975 and 1986 there had been no restraint policy at the school. Thereafter such a policy had been developed. From 1996 there had been a course in relation to therapeutic crisis intervention, in which the appellant had been a reluctant participant. The appellant accepted that it had never been suggested to any pupil at the school who gave evidence against him that that pupil had not been present at the school at the material time. The appellant himself had given evidence over a period of several days at his trial.

[19] As regards the matter of the storage of documentary material at Ayr Police Office, the appellant accepted that it was necessary for access to such documentation to be controlled. There had been an independent enquiry into events at the school which affected other members of the staff. The appellant made clear that his complaint was the manner of the treatment of himself and his legal advisers at the police office. In certain respects the police had refused access to the documents. He had been told that he had to put in writing a description of the material which he required to inspect, which was difficult when it was not clear what material was situated there. It was accepted that the non-availability of documents had not formed any part of his defence, although he wished there to have been agreement on the non‑availability of certain material. The Advocate depute proceeded to put to the appellant several documents which, it was suggested, indicated that the Crown had been co-operative at all times in making available such material as existed, desired by the appellant and his advisers. In particular reference was made to Balfour + Manson file volume 1 page 146, page 96 and the Balfour + Manson file volume 2, pages 294, 255, 237, 213, 180, 154, 148, 143, 9, 8 and 7. However, the appellant reiterated the difficulties that he and Mr Graham Robertson had experienced at Ayr Police Office in their attempt to examine documentation.

[20] Turning to the issue of the joint minute, the appellant stated that he had never seen the document, or even a draft of it, before it was read in court. He agreed that it was couched in non-technical language. He could not remember having discussed with his advisers the Crown request contained in the letter of 9 December 2005 from the procurator fiscal at Ayr, requesting agreement of the dates of residence of pupils at Kerelaw School although it appeared to have been copied to him with the communication at page 94 of the Balfour + Manson file volume 3. The appellant went on to say that he had no recollection of the discussions relating to the joint minute which took place following the completion of the Crown evidence at the trial. The appellant did accept that there might have been discussions relating to the joint minute involving him at that stage, but he insisted that no one had gone through it with him. The appellant said that he did not know what changes might have been made in the draft joint minute. He agreed that he had heard the minute read out in court, but could not understand what was the basis of the agreement. He agreed that he did not complain about the situation. He did not speak to any of his lawyers about it when the document was read, or later. He was unable to explain why he did not complain about that matter to them. Other things had been going on, he said.

[21] Turning to the issue of Mr George Torrance, the appellant agreed that, while the names of certain potential witnesses had been deleted from the list that he had compiled, that of Mr Torrance had not. The appellant had been disgusted that he had not given evidence. He claimed that Mr Graham Robertson had said to him that the jury had heard enough. He had been angry about that. Earlier there had been discussion regarding whether Mr Torrance could give evidence by a video link, but that matter had not been pursued. The appellant was then asked about the position of Mr Robert Forrest, who had been headmaster of the school during some of the relevant period. At the time of the trial he was resident in New Zealand. His position had been discussed at a meeting on 6 March 2006, although the appellant did not remember that. As regards Mr Torrance there had been certain discussions at a meeting on 20 March 2006, as appeared from page 494 of Balfour + Manson's file volume 5. The appellant agreed that the document page 337 of Balfour + Manson's file volume 5 indicated that by 31 March 2006 it was clear that George Torrance was not going to give evidence. However, he said that he did not agree to that. He had to treat it as a fait accompli.

[22] Mrs Yvonne George, the wife of the appellant next gave evidence. She explained her family's circumstances and recalled the trial of the appellant. She had been present at some discussions with his legal advisers. On some occasions, Mr Graham Robertson, Mr Andrew Gibb and Mr Stephen O'Rourke were all present. On other occasions, only counsel were present. The witness said that she might have attended one meeting at the court itself, but had not been in court at preliminary hearings. Since she was a witness at the trial, she had not been present at it until the time came for her to give evidence. She had not been present at the reading of the joint minute. After the conviction, she had sought and obtained a copy of it from Mr Andrew Gibb. She was particularly interested in its terms because of the appellant's consideration of dates when persons were pupils at Kerelaw School. She felt let down that the appellant had not had this before the trial.

[23] Evidence was then led from Lisa MacKnight, a daughter of the appellant. She had attended nearly every day of the trial, since she was not a witness. She had attended meetings between the appellant and his legal advisers before the trial at the family home, although not elsewhere. Mr Graham Robertson had attended these meetings. The witness might not have attended all of them. Mr O'Rourke was also present on some occasions. There was no solicitor present.

[24] The witness recollected that there was great concern before the trial regarding the dates between which the complainers had been pupils at the school. Dates had been given to the appellant, but they conflicted. The joint minute, Crown production 128 at the trial, had not then been available. The matter of dates was important because the application of the Moorov doctrine depended on dates. At some stage dates in respect of S MacD had been proffered which were obviously incorrect; they would have indicated that he had been at the school until he was 18 years old, which was not possible. The witness saw a copy of Crown production 128 at the trial, Crown documents volume 2, tab 21, after conviction. She had gone through this with her husband and had noticed that the dates to be found in it meant that certain complainers who had claimed to corroborate each other were not in fact at the school at the relevant time. The terms of the joint minute and this document did not appear to coincide. The witness was referred to the file note at page 476 of Balfour + Manson's file volume 5. The witness had been present at court on 22 March 2006, when the subject matter of the file note was discussed. She agreed that there had been discussions regarding the joint minute, but the terms of that minute were not gone through with counsel and the appellant. The witness had been assured that junior counsel was going to check the dates contained in it and that, if appropriate, changes would be made. Certain amendments had been made to the indictment itself. The witness did not understand that the joint minute constituted a binding agreement; she realised that after conviction and sentence.

[25] The last witness for the appellant was Robert William MacKnight, the son in law of the appellant, who was married to the previous witness. He also had attended meetings with the appellant's legal advisers, particularly in October 2005 and during the trial itself. He had attended at court during perhaps 80% of the trial itself. He had been present at the end of the Crown case and during part of the defence case, along with his wife. One of the issues of concern had been when different complainers had been pupils at the school. The appellant had an issue with the dates. He considered that they were "too loose" to agree. He had never been present at any meeting when the appellant had instructed his legal advisers to agree such dates. The witness confirmed that at the meeting on 22^nd March 2006 referred to by the previous witness the terms of the joint minute had not been gone through; other matters, such as the manner of the appellant's giving of evidence, were discussed. The witness had never seen the document, Crown production 128 item 22 in volume 2 of Crown productions, prior to the trial.

[26] At the conclusion of the evidence led for the appellant, it was indicated that evidence would not be elicited from Mida McCabe and Christopher McCabe, who had been cited as witnesses. Agreement had been reached with the Crown regarding the evidence which they would have given. That agreement was to the effect that they had been present at certain of the meetings that took place between the appellant and his legal advisers. So far as they were aware, no instructions had been given by the appellant to agree the dates between which the complainers had been resident at Kerelaw School.

The Evidence for the Respondent

[27] The first witness led on behalf of the respondent was Stephen O'Rourke, a member of the Faculty of Advocates. In December 2005 he had been instructed as junior counsel for the appellant, whose principal function was to assist at the trial. He had however attended some consultations in preparation for it. He had attended in court on every day of the trial itself when there were daily consultations with the appellant, which took place before the trial commenced, at the lunch break, or at the end of the court day. He recognised the joint minute which had been lodged at the trial as the document 3 in volume 1 of the Crown's productions in the appeal, which he had signed. He explained that the basis for his signing the document had been that he had received instructions to do so. He had been present at discussions which led up to it. He had been instructed to sign the document by Graham Robertson, who was acting on behalf of the appellant. The witness had been present at discussions between Mr Robertson and the Advocate depute concerning the matter. Asked whether the joint minute had been discussed with the appellant himself, he replied that he believed that it "would have been" on more than one occasion.

[28] The witness was shown page 476 of the Balfour + Manson file volume 5, the note of 22 March 2006 compiled by Mr Graham Nelson. He had no specific recollection of the discussion narrated in that note, but said that he considered it would have been extraordinary if the joint minute had not been discussed with the appellant.

[29] Turning to the issue of defence witnesses, the witness had been involved in discussions regarding them. There had been 70 or 80 persons on a list of potential witnesses compiled at one stage. The file note at page 337 of the Balfour + Manson file volume 5 related to such a discussion on 31 March 2006. The witness did recollect that meeting. There was a reference in the note to the appellant being angry; that was a reference to the difficulty of obtaining one, Graham Bell, who was residing in America, as a witness. There were also other problems relating to the bringing of potential witnesses to the trial. There was no question of the appellant adopting a passive role in relation to consultations. He expressed his own views, to which careful attention was paid. There had been lively discussion as to how the defence case should be conducted. Page 315 of the Balfour + Manson file volume 5 related to such a discussion on 3 April 2006. The topic then was how the defence case should be concluded. The note recorded that the appellant "gradually came round" to the advice that was being offered to him. The witness recalled that the topic of George Torrance as a possible witness had been discussed.

[30] The witness was referred to a minute of a consultation held on 12 April 2006, before the jury had returned their verdicts. It appeared at page 232 and following in the Balfour + Manson file volume 5. The discussion had focussed on possible grounds for appeal, in the event of conviction. During the course of the discussion the appellant made it clear that he had been happy with his team of legal advisers. In particular there was no complaint from the appellant that the joint minute had been entered into without instructions. Further, the appellant did not complain that Mr George Torrance had not been called as a witness.

[31] In cross examination the witness referred to the Anderson response that he had prepared. He emphasised that his part in the proceedings had been principally to furnish assistance at the trial. Questioned concerning Mr George Torrance, the witness could not recall why he had not been adduced as a witness. No explanation had been put before the jury as to why he had not been led in evidence.

[32] The witness had attended a number of consultations at the appellant's own house, when no solicitor, or other representative of Balfour + Manson, had been present. He had been somewhat concerned about that, but he made it his business to take a careful note of what transpired at such meetings, which was sent to Mr Andrew Gibb. Asked about the joint minute, the witness explained that its terms had evolved during the course of the trial. He had not checked the dates of residence of pupils recorded in it because he had not had the material to do that. The joint minute had been discussed on a number of occasions during the course of the trial during the presentation of the Crown case; its terms had been adjusted and changed. He did not recall a general discussion regarding the joint minute with the appellant, although its significance and contents were explained to him, when he took no issue with it. The dates of residence of pupils at the school had been the subject of ongoing discussions between Mr Robertson and the Advocate depute, and also Mr Wallace, solicitor advocate for the second named accused.

[33] Turning to the function of Mr Graham Nelson; at the material time he had been a trainee solicitor with Messrs Balfour + Manson and had attended court every day during the trial. He noted discussions between counsel and the appellant. He also recorded any instructions regarding the administration of the case as it proceeded. Mr Andrew Gibb was a senior partner of Messrs Balfour + Manson and had a different relationship with the appellant. He had not attended the trial on a daily basis, but had attended at significant points in it. He had explained the involvement of the Educational Institute of Scotland, who had assumed financial responsibility for the appellant's defence. Reverting to the matter of the joint minute, the witness explained that its terms had not been crystallised until the end of the Crown case. The appellant had given instructions that it should be signed. Its content had been explained. Prior to that time there had been general discussions regarding the joint minute. From the outset, the position of the Crown had been that it did not intend to undertake the task of proving all of the dates from documents and witnesses. The dates concerned had been capable of agreement and had been agreed. The appellant had agreed in principle to a joint minute being devised from the outset of the case. Various drafts of the minute had been shown to him. The witness rejected the suggestion that the Crown would not have been in a position to prove the dates had that been necessary. The witness re-emphasised that clear instructions had been given by the appellant to sign the joint minute.

[34] The next witness led on behalf of the respondent was Andrew Thomas Fotheringham Gibb, solicitor, a partner of Messrs Balfour + Manson since 1975. He had held the office of President of the Law Society of Scotland. He had been instructed first by the Educational Institute of Scotland in 1982. It was the main professional organisation for teachers and lecturers in Scotland. On many occasions he had acted on behalf of teachers who had been facing disciplinary or criminal proceedings, on behalf of the Institute. It provided the funding necessary for such representation. Mr Gibb said that he had received instructions from the Institute to represent the appellant regarding the criminal proceedings arising out of the allegations of abuse of pupils at Kerelaw School. The case was funded by the Institute.

[35] The witness explained that he had been in touch with the Crown Office from a very early stage regarding the proceedings against the appellant. The extent of the allegations, involving 49 charges, had not come as a surprise to the witness. From an early stage the witness had sought disclosure of witness statements and productions relating to the case from the Crown Office. His relationship with that office was free from difficulties. The witness had found the appellant a co-operative client. He had kept him fully provided with the witness statements which emerged and any productions which he might have wished to see. What was recorded at pages 145 to 146 of volume 1 of the Balfour + Manson file dated 16 March 2005 accurately described the helpful attitude demonstrated by the Crown in relation to the disclosure of documents. As regards the funding of the appellant's defence, the witness said that he had been given a free hand; an hourly rate had been agreed; experts could be instructed; if any extraordinary expenditure was involved the witness required to obtain authority for that. However, there had been no restriction on expenditure.

[36] The witness was well aware that there had been a very large volume of documentary material in Ayr Police Office relating to the case. Linda Carmichael, a secretary at the school, had identified some of the material; otherwise the task of looking for some particular item was like looking for a needle in a haystack. The witness was aware that Mr Graham Robertson, Mr Nelson and the appellant had spent a day there with the material. Thereafter the appellant had taken a decision that no further visits were required. The letter from the procurator fiscal at Kilmarnock, dated 6 July 2005, page 294 of Balfour + Manson's file volume 2, was an example of the extent to which the Crown co-operated in producing material pertinent to the case. The witness also referred to page 255 of the same file. It dealt with the rules for the viewing of documents at Ayr Police Office; the witness had no personal concerns regarding those conditions. Where appropriate, documentary material had been sent to the appellant personally, as appeared from page 237 of the same file.

[37] The witness then dealt with the meeting between him, Graham Robertson and the appellant on 24 August 2005 to which the documents pages 180 to 191 of volume 2 of the Balfour + Manson file related. The record of the meeting had been compiled by the witness himself. It recorded that uncontroversial matters could be the subject of agreement in a joint minute but that dates of admission and discharge could only be agreed when the appellant's advisers were satisfied about them. It became evident at least by September 2005 that further visits to the store of documents at Ayr Police Office were not necessary, as appeared from pages 143 and 148 of volume 2 of the Balfour + Manson file. Pages 7 to 9 of the same file showed the progress that had been made regarding the identification of dates of admission and discharge of pupils at the school. Following the detailed consideration which had been given to that matter, the witness had no concerns about such an agreement. The documents at pages 240, 182 and 179 of volume 3 of the file were put to the witness; he did not understand the basis for the references at page 240. The fact was that by the time the letter at page 179 was written, any concerns regarding the situation at Ayr Police Office appeared to have subsided.

[38] The view of the witness was that by the time the case came to trial it had been well prepared. Witnesses had been precognosced and had the defence not been ready, action would have been taken. The appellant had given agents a lot of names of potential witnesses. They had been precognosced. As regards the position of Mr George Torrance, he had been very elderly and not fit to attend court. Had his evidence been considered to be absolutely necessary, arrangements could have been made to have it taken in another way. There had been formidable problems in arranging for the transportation of Mr Forrest from New Zealand, but that had been done; the appellant however had no desire to have the trial postponed. The opposite was the case. He had made it clear that he wanted it to proceed. As regards attendance at the trial, the witness attended from time to time; his trainee Graham Nelson attended daily. As regards the signing of the joint minute, no complaint was ever made by the appellant regarding that. Furthermore, he did not complain that, in the end, George Torrance had not been led as a witness. There had been no recriminations; there had been a recognition on the part of the appellant that all possible steps to prepare the case had been taken.

[39] In cross examination, the witness explained the position of Mr Stephen O'Rourke as a "noting junior". However, he had been given every opportunity to familiarise himself with the case, for which he was paid. He had been involved in preparation meetings at the appellant's house. From time to time those meetings were arranged at very short notice; the witness saw no problem in a representative of Balfour + Manson not being present. Referred to pages 279 to 281 of volume 2 of the Balfour + Manson file, the witness said that he had had no concerns regarding Mr Graham Robertson's professional position in this regard. The purpose of the meetings had been the gathering of information rather than the taking of decisions. The witness's position in these matters had been expressed by him in a letter, dated 18 November 2005, to the Educational Institute of Scotland, at page 301 of volume 3 of the file.

[40] Reverting to the matter of admission and discharge dates of pupils, the witness did not recall whether, in respect of some residents, there appeared to be no records. Had that been the case, he would have expected requests to have been made to the police to examine the records with a view to discovering missing documents. He did not recall whether the steps contemplated by the appellant at page 328 of volume 2 of the file had been undertaken.

[41] On the subject of the possibility of Mr George Torrance giving evidence, the witness did not recollect being present at a discussion when his position was considered. However he could say that it had been reported to him that the appellant had agreed that he was not required, on account of his state of health. Had it been appropriate for him to give evidence, there would have been no problem about the arrangement of a commission for that purpose. However the witness accepted that, as appeared from page 494 of volume 5 of the Balfour + Manson file, dated 20 March 2006, as at that date, no decision had been taken not to call George Torrance. His significance as a witness would have depended on what he could say. As to that, the nature of the evidence which he might have given was set out in his precognition, tab 9 in Crown productions, volume 1.

[42] The witness said that, following the conclusion of the trial, certain matters continued to be the subject of correspondence. The appellant's family had been unhappy and unable to accept the verdict reached. However, the appellant himself had said that he was satisfied with the service he had received from his legal advisers and that there were no recriminations. Following upon conviction, there was some discussion and correspondence concerning a possible appeal, but the witness himself, upon the advice of counsel, did not consider that there were grounds for an appeal. He wrote to that effect on 2 June 2006 to the Educational Institute of Scotland, as appeared from page 65 of volume 5 of the Balfour + Manson file. He said that his firm had done their best for the appellant and that he had no concerns about his representation. Mr Graham Robertson had been selected as counsel by the appellant himself.

[43] The next witness led on behalf of the respondent was Mr Graham Douglas Nelson, solicitor. He had been a trainee with Messrs Balfour + Manson at the time when that firm was representing the appellant. He had been asked to assist with the case. He described the circumstances relating to the documents held at Ayr Police Office. At the time of the trial itself, he had been in daily attendance; his role then was principally administrative. There had been meetings involving the appellant and counsel before, during and after the court day, affording the appellant the opportunity to make comments, raise questions and give instructions. The witness had made numerous file entries. He confirmed that what appeared on page 494 of volume 5 of the Balfour + Manson file was one of the entries made by him, on or about 20 March 2006, when the Crown case at the trial had almost ended. As far as he could recall, it was accurate. The George Torrance referred to there had been one of the head teachers at the school. He was unable to elaborate on what appeared on page 397 of the same file, an entry dated 28 March 2006. The witness did have a recollection of the subject matter of the file note at page 476 in the same file, dated 22 March 2006. At that meeting Graham Robertson had explained the purpose of a joint minute. So far as the witness was concerned, that was an accurate note. Prior to the joint minute being read to the jury, it had been discussed in detail over a period of weeks, as regards its contents. It had been gone through bit by bit. The appellant had been involved in such discussions on several occasions, focussing upon the dates of admission and discharge of pupils at the school.

[44] In cross examination, the witness agreed that on page 315 of volume 5 of the Balfour + Manson file no reference was made to George Torrance. In the view of the witness, there had been a change of view on the part of the appellant concerning the issue of his giving evidence, although the witness had no specific recollection of this discussion. Under reference to page 476 of volume 5 of the Balfour + Manson file, the witness recollected some discussion regarding the preparation of the joint minute. He had no recollection of the detail of that discussion. He himself had not checked the dates of admission and discharge of pupils. However he knew that there had been discussions between counsel and the Crown relating to that matter in some depth. The witness thought that, if there had been a detailed discussion about the contents of the joint minute with the appellant, he would have prepared a file note regarding the matter and completed a timesheet. It appeared from pages 476 and 479 of that volume of the file that it had been decided that a joint minute would be agreed prior to its purpose being explained to the appellant.

[45] On the issue of the possible leading in evidence of George Torrance, the witness said that he had no specific recollection of any discussion regarding that matter, or of the medical certificate produced on his behalf. The witness agreed that page 471 of volume 5 of the Balfour + Manson file contained three lists of witnesses in order of importance. Mr Torrance's name appeared on the first of these, indicating that he had been considered a significant witness. The situation regarding George Torrance's state of health had been explained to the appellant, as was evident from page 397 of volume 5 of the same file.

[46] The final witness on behalf of the respondent was Mr Graham Robertson, advocate. He explained that he had been in practice as an advocate for 27 years. The largest part of his work was in the field of criminal law. He had been instructed by Mr Andrew Gibb of Balfour + Manson in April 2005 on behalf of the appellant, who faced certain charges arising from his presence as a teacher at Kerelaw School. The defence was being funded by the Educational Institute of Scotland. Accordingly the constraints associated with Legal Aid work were not applicable. There had been several petitions and many serious charges had been brought against him. There existed very substantial documentation relating to the operation of the school. As preparation was carried out, more and more documents had been sent to the witness from around May 2005. It was true to say that the case evolved over time. Its scale was very large. Asked about his relationship with the Crown authorities, the witness said that, so far as he was concerned, he enjoyed an excellent relationship with them. His requests for information or documentation were answered. At the start, no particular Advocate depute had been assigned to the case. There had been 348 boxes of documents relating to Kerelaw School stored at Ayr Police Office. The witness had visited once there with the appellant to assess what might be involved in their examination. He had been aware of the conditions imposed concerning their inspection and use. There had been no difficulty about having any particular document copied, if that was desired. However, the witness said that he had not been happy with the constraints imposed by the police; he felt that the atmosphere created there was oppressive. That made the operation more difficult. The room in which the documents had to be examined was not spacious, although there was a desk and some chairs. The witness himself was not concerned about the presence of a police officer there at all times, or about the possibility of that officer hearing any conversation that took place. The task of examining every document there would have taken years. They had not been catalogued, but simply packed into boxes. There had been some measure of organisation, for example, the boxes were numbered. There had been no question of the witness being prevented from searching for documents.

[47] The Crown had offered to make significant principal documents Crown productions, but the witness was not happy about the arrangements generally. He expressed his views to staff at the procurator fiscal's office in Kilmarnock. However, he did not formally take the matter up with the Advocate depute. The witness had been informed that the appellant and Graham Nelson had attended on another occasion, when, he understood, the experience had been better than on the first. Mr Robertson said that he had been instructed by Balfour + Manson that there was no need for the matter to be taken up with the Advocate depute, as appeared from page 179 of volume 3 of the Balfour + Manson file. In an ideal world, the witness said that he would have wished to have seen all the documents, but was content that the defence had been put in a position to proceed; it had not been compromised.

[48] Turning to other matters, the witness said that before the preliminary hearings there had been a discussion of possible areas of agreement in conformity with the duty imposed by section 287 of the Criminal Procedure (Scotland) Act 1995. The process of discussion had been ongoing. It focussed particularly on the dates of admission to and discharge from the school of pupils. The Crown's position had been that they were refining the draft joint minute relating to these matters; schedules of such matters were prepared. The witness said that these dates had never been an issue with the appellant. He had a very good recall of pupils and dates.

[49] As regards the defence itself, it was that the acts alleged had not taken place. The strategy to be adopted had to involve an attempt to undermine the credibility and reliability of the witnesses to those alleged events. Mr Robertson said that he had never been instructed to the effect that a pupil who alleged abuse at a particular time or between particular dates had not in fact been a pupil at the material time. The witness then proceeded to identify the joint minute in the terms in which it had been signed, in volume 1 of the Crown documents tab 3. It had to be emphasised that the dates in that minute had been revised on an ongoing basis with a view to their being made more specific. There were documents held by the Crown in the procurator fiscal's office in Kilmarnock which contained these dates. The witness had attended at the procurator fiscal's office there for two or three days along with the appellant to examine these documents. They had spoken with a Mr John McMillan, a precognition officer involved in the matter, concerning these issues. No representative of Balfour + Manson was present at that time. The witness emphasised that he had resisted signing the joint minute until the stage at which it was signed. He said that the appellant had been quite happy for the joint minute to be signed when it was. By the time that stage had been reached the dates of admission and discharge had not been a big issue.

[50] Once the trial commenced, the witness explained that counsel, solicitors and the appellant met prior to each court day commencing, consulted at lunchtime and also at 4.00 pm, following the adjournment of proceedings. Sometimes there had not been much discussion, but if there was anything to discuss there was an opportunity for that to be done. The witness found that his dealings with the appellant were informed, intelligent and proactive. He had had an excellent relationship with him. The purpose of the preparation of the joint minute had been explained to him, as appeared from page 476 of volume 5 of the Balfour + Manson file. The witness said that he did not have a specific recollection of the meeting on 22 March 2006, but he was able to say that the terms of the joint minute were explained to the appellant on many occasions. The witness did not agree with the suggestion that the appellant had given express instructions not to agree certain dates; that would have been out of keeping with the relationship that had existed between him and the appellant. Had such instructions been given, a joint minute containing such dates would not have been signed. It was not correct to say that the appellant had never seen the joint minute prior to its being signed. He had seen every single document of significance and understood it. The witness regarded it as his business to secure that that was so. That suggestion had no basis in fact. Mr Stephen O'Rourke had signed the minute himself on the instructions of the witness and with his knowledge. That would not have been done if it had been in conflict with the client's instructions. It had to be remembered that the appellant had heard the joint minute read to the jury and had made no complaint at the time or later about that being done. The witness said that he had seen the appellant before and after the sentence passed at the end of the trial; he had made no complaint to him about the handling of any matter.

[51] Turning to the issue of defence witnesses, between 90 and 100 potential witnesses had been identified. Mr George Torrance, a former headmaster of the school, was one. The appellant had thought that he was potentially an important witness. Mr Robertson said that he considered that the matter of defence witnesses was a delicate one. By the time that the Crown case ended, he had heard the complainers giving their evidence. They were numerous. Many of them had been upset in giving evidence and appeared genuine; others were more controlled. It had to be remembered that there was a broader ongoing inquiry into the conduct of Kerelaw School. The assessment of who should or should not give evidence as a defence witness had been an ongoing process. There could be no question of all of those identified as possible defence witnesses being called. There had been discussions of every aspect of the matter many times. At the start of the trial, the appellant had said: "I'll leave it to you to make the case". It had to be borne in mind that the appellant himself had been in the witness box for approximately 3 days. Page 494 of volume 5 of the Balfour + Manson file recorded an example of the kind of discussions that took place regarding witnesses and tactics. The question of the documentation that had not been available for use at the trial had been considered as a topic for possible agreement. It might have been of assistance if the jury had known about that. In the event, that did not happen. As the case had unfolded it became obvious that there was a huge volume of documentation in being. There had been tens of thousands of documents available. It had become obvious from the evidence that this material existed and that much of it was not before the jury. In these circumstances it was considered that there was no need for a joint minute relating to that matter.

[52] So far as George Torrance as a potential witness was concerned, it was recognised that he was aged and frail. Originally it had been expected that he might have come, but plainly he would not if he was not able to do so. His evidence could have been taken on commission. That possibility had been considered at an earlier stage around November 2005. There was no funding problem relating to that. The witness then referred to the Note by Counsel dated 23 March 2006 page 454 of volume 5 of the Balfour + Manson file, which reflected his view. In it, it was stated that the evidence of Mr Robert Forrest, also a former headmaster of the school, was vital in the absence of the evidence of Mr George Torrance on account of his ill health. The leading of the evidence of Mr Forrest and of Mr Raymond Bull was considered to constitute a strong finish of the defence case, as appeared from page 337 of volume 5 of the Balfour + Manson file. It was in these circumstances that the defence case had been closed without the evidence of George Torrance. Mr Robertson said that he had had instructions to finish the defence case without that evidence; of that he had no doubt.

[53] Mr Robertson said that certain of the defence witnesses led had received warnings concerning self-incrimination. He had no objection to that; it did not constitute any problem for the defence strategy. He had met the appellant while the jury were out and following upon the appellant's conviction. No dissatisfaction was expressed by him regarding the conduct of the case. The witness agreed that a Crown witness, M P, had been recalled and cross examined by him. He did not recall why the document, tab 17 of volume 1 of the Crown documents, had not been put to him.

[54] In cross examination, when asked about the checking of the raw material which was reflected in the terms of the joint minute, the witness said that he had done that. He recollected that there had been several sources of such material, first, the memory of the appellant, who was able to give considerable assistance, second, the schedules provided by the procurator fiscal at Kilmarnock to Messrs Balfour + Manson, which provided dates relating to particular complainers, third, certain documentary records which identified the relevant dates, and fourth, information received from the Crown. The witness considered that he had been able to rely on the integrity of the Crown in preparing and revising the information in the joint minute, which was ultimately accepted by the appellant; he considered that all of that material meant that it was appropriate for instructions to be given that the joint minute should be signed. He readily agreed that, in relation to certain complainers, the Crown had experienced difficulty in furnishing dates with precision. If the Crown had had serious difficulty in proof of particular dates, plainly it would not be in the interests of the appellant to have agreed such dates. The witness agreed that Mr O'Rourke had not had a full set of papers. It was put to him that it was wrong to say that dates were never an issue; he rejected that suggestion. There was then put to the witness the contents of the file note at page 184 of volume 2 of the Balfour + Manson file. What that note made clear, said the witness, was that dates were only to be agreed once defence counsel had been satisfied of their accuracy. That reflected a responsible view of the matter, which had been followed. There had been much fine tuning of the dates by the Crown in response to the defence concern regarding their accuracy. Turning to the matter of meetings with the appellant, at some of these no representative of Balfour + Manson had been present, but Mr O'Rourke had been present at many of them. His instruction in the case reflected the witness's anxiety that there should be a junior counsel involved. He had first been instructed in November 2005. That was a necessary step in view of the scale of the material to be handled in the case. Mr Robertson did not regard Mr O'Rourke as merely a "noting junior"; he stated that he had asked for a second counsel. Mr O'Rourke had familiarised himself with the case by reading the papers in possession of the witness Under reference to page 97 of volume 1 of the Balfour + Manson file, the witness agreed that he might have said that he did not require a junior at the stage when that letter was written, 15 April 2005. However, at that stage he knew little of the case. At a later stage, towards the end of 2005, it had become apparent that the instruction of a junior was appropriate.

[55] The witness was then questioned about the effect of documents constituting tab 21 in the Crown productions volume 2. It contained dates of arrival and departure of pupils at the school. It was suggested to him that there were discrepancies between that document and the dates appearing in the joint minute. He accepted that that might be so and was unable to explain the reason for it. Nevertheless, the witness insisted that the appellant's instructions had been given authorising the signature of the joint minute.

[56] Mr Robertson explained that, particularly in the earlier stages of the preparation of the case, there had been meetings between himself and the appellant at which no representative of Balfour + Manson had been present and of which he had taken no notes. However, since the purpose of these meetings was the provision of information and explanations for him, he did not consider that that constituted a problem. Asked about the file note concerning the final preliminary hearing, at pages 58 to 60 of volume 4 of Balfour + Manson's file, the witness agreed that so far as he was concerned, it was accurate. In relation to the file note at pages 85 to 86 of volume 3 of Balfour + Manson's file, the witness said that it was true that the dates of admission and discharge had been authorised by the appellant to be agreed.

[57] The witness was again asked regarding the position of George Torrance. He agreed that the appellant regarded him as an important witness, along with 98 other persons. An hierarchy of witnesses had been developed; Mr Torrance stood in category 1. At an early stage, the witness had regarded him as an important potential witness since he had been headmaster of the school from the early 1970s to the mid 1980s. However he was not the only person who had been headmaster there. His importance was related to the question of what other witnesses might be led. The witness agreed that, as at 23 March 2006, a decision had not been taken that George Torrance would not be led in evidence, although it was recognised that he was not fit to do so, as appeared from page 449 of volume 5 of Balfour + Manson's file. The witness emphasised that, in the end, the appellant had left to his discretion the matter of what witnesses were to be called. The witness said that the jury had heard evidence relating to the earlier years at the school to the effect that complaints had been made to the headmaster, about which he had done nothing. However, he pointed out that evidence had been led from three senior members of the staff. While the taking of evidence on commission was an option, it had to be recognised that such evidence was less effective than evidence given in court. The fact was that when the appellant was acquainted with details of Mr Torrance's medical condition, he had made no complaint about his not being called as a witness. Had he been seriously concerned about that matter, it would have been recorded. In that connection reference was made to page 367 of volume 5 of the Balfour + Manson file.

[58] The witness was then questioned about the availability and use of the school records. It became evident during the course of the inquiries that the records were incomplete. Asked about the terms of the file note from Sharon Taylor, Mr Andrew Gibb's secretary, at page 240 of volume 3 of the Balfour + Manson file, the witness said that the word "unhealthy" should be corrected to "unhelpful"; he did not understand what was meant by the word "compromised", which was not his word.

[59] Attention was drawn to a file note at page 218 of volume 3 of the Balfour + Manson file referring to the complainer S MacD and his interview with social workers. The witness remembered that aspect of the case. A request had been made for a note of the meeting concerned. The witness did not know whether that matter had been followed up and, if not, why not. If there had been any inconsistency between such a note and the witness's evidence in court, that would have been useful in cross examination.

[60] The witness was then questioned about the Anderson responses. He had written two letters dated 21 November 2008 and 24 November 2009. The former was tab 13 in the Crown productions. What was said in the third paragraph on page 2 of that document was correct. Much work had been done by the witness at the office of the procurator fiscal in Kilmarnock relating to the recovery and identification of documents. The position of the appellant in December 2005 had been that he did not wish the trial to be postponed. He had been under strain and wished it to proceed. When it did so, it had been possible to present the appellant's defence effectively. The presentation of a defence case was not a science, but an art; many factors had to be taken into account in the exercise of professional judgement. The witness agreed that, as at 26 January 2006, to which the file note at pages 23 to 29 of volume 3 of the Balfour + Manson file related, the view was that it would have been helpful to have a joint minute relating to documents which had not in fact been discovered and produced in court.

[61] The witness was referred to the Advocate's Guide to Professional Conduct, 2^nd Edition, March 2005, paragraph 41, which indicated that the holding of a consultation with a client without a solicitor being present was wrong. The witness said that he was quite aware of that. He had attended meetings with the client alone, with the agreement of the solicitors involved. As already explained, these had not been formal consultations, but were exercises for the convenience of the witness to gain information. When a formal consultation had been held, a solicitor had been present. The witness agreed that the Dean of the Faculty of Advocates had not been asked for authority in this connection.

Submissions

[62] In this appeal we have had the benefit of submissions in writing from both the appellant's advisers and representatives of the respondent, extending to 37 and 22 pages respectively. They are numbers 68 and 67 of the Appeal Court process. We do not intend to attempt to summarise those submissions in writing, since it is not reasonably practicable to do so within the confines of this opinion, however, we have, of course, taken them into account in reaching our decision. In addition to the submissions in writing, extensive oral submissions were made on behalf of the appellant and the respondent. We intend to record brief summaries of those.

Summary of Appellant's Submissions

[63] After introducing the case, senior counsel made the point that contemporary school records did not exist for all of the complainers; others were incomplete. That was a factor which ought to be kept in mind. In that connection reference was made to Regina v Joynson [2008] EWCA 3049. It was appreciated that the criterion being applied in that case was that of "unsafe" conviction, which was not applicable in a Scottish context. However the non-availability of contemporary records was a factor which had to be kept in mind.

[64] Senior counsel began by supporting and elaborating ground of appeal 7 which related to the convictions on charges 7 to 10 inclusive. The contention was that there had been a wrongful admission of hearsay evidence from the Crown witnesses Francis Tran and Kathryn Mary Jack, which evidence included the terms of Crown production 109, which had been read in full to the jury. The evidence consisted of detailed reports from the witnesses as to what D E and S J alleged had happened to them many years before the conversations described. It was accepted that no objection had been taken to the admission of this evidence during the course of the trial. Accordingly section 118(8) of the Criminal Procedure (Scotland) Act 1995, ("the 1995 Act"), had made it impossible to rely on the wrongful admission of this evidence. However ground of appeal 7 was framed as a criticism of the directions given by the trial judge in relation to the evidence. Those directions were to be found at pages 9 and 10 of the transcript of the trial judge's charge. D E had given evidence before Francis Tran and S J had given evidence before Kathryn Mary Jack did so. The credibility and reliability of the two complainers had been challenged. It was plain that the evidence complained of had been led to bolster the credibility of those two witnesses. The trial judge had directed the jury that the evidence concerned could be used, not as corroboration for what a particular complainer was saying, but as an aid when the jury were assessing the complainer's credibility and reliability. Furthermore, evidence had been led from Francis Tran concerning the demeanour of D E on the occasion of his visit to the school. That evidence had also been objectionable. In connection with these matters senior counsel relied upon KJC v Her Majesty's Advocate 1994 S.C.C.R. 560, at pages 564 to 566. It was submitted that what had happened in this case went beyond what was acceptable. The submission was that essentially the trial judge had misdirected the jury in that the evidence under discussion had been inadmissible. Senior counsel went on to draw attention to the Crown's response to this ground of appeal set forth in paragraphs 7.1 to 7.6 of their written submissions. The Crown's reliance on Morton v His Majesty's Advocate 1938 J.C. 50 was misconceived. That case had been concerned with de recenti statements. McFadden v Her Majesty's Advocate 2009 SCCR 902 was a case in which the significance of section 118(8) of the 1995 Act had been considered. The court examined the relationship between that subsection and the line of authorities including Anderson v Her Majesty's Advocate 1996 S.C.C.R. 114. However the gravamen of the appellant's criticism was that what was referred to in ground of appeal 7 was a misdirection rather than anything else. Section 118(8) of the 1995 Act had no application to that. It was also appropriate to draw the attention of the court to Ahmed v Her Majesty's Advocate 2009 SCCR 861.

[65] Summarising his position in relation to this ground of appeal senior counsel submitted that the evidence of Francis Tran and Kathryn Jack should have been excluded from consideration. The fact that it had not been constituted a miscarriage of justice in relation to charges 7 to 10 inclusive. However the implications of the matter went beyond that because the trial judge directed the jury that the Moorov doctrine could be applied to the charges under consideration and also charges 1, 3, 6, 11 and 14. Thus the convictions on those charges also were flawed.

[66] Senior counsel next turned to deal with ground of appeal 9. It related only to charge 45 on the indictment. The terms of the conviction in terms of this charge was that:

"on various occasions between 9 February 1993 and 1 August 1995 both dates inclusive, at Kerelaw School, Kerelaw Road, Stevenston you...did assault C G G...then a pupil at said school and seize her by the clothing, and strike her on the head with your open hand, all to her injury."

It was said that evidence in support of this charge had come only from A-M B and C G G. The submission was that the evidence from those witnesses did not permit of a finding of assault and, in any event, did not support any of the specification of the libel. Accordingly the conviction on this charge should be quashed. The evidence which had been available in support of this charge had been summarised by the trial judge at pages 5 to 7 of her original Report. Looking at that evidence there had been insufficient evidence to justify the verdict of the jury. In connection with this submission senior counsel relied on McGeary v Her Majesty's Advocate 1991 S.C.C.R. 203.

[67] Senior counsel next turned to deal with ground of appeal 13. This ground and ground 14 related to charge 24 in the indictment and concerned alleged assaults on M P. This ground raised an issue of sufficiency of evidence and also of misdirection. Ground 14 was based upon the existence of fresh evidence relating to the state of the gymnasium at the time of the events described in the charge. However, it was only concerned with the element of the charge which related to the use of sports balls as weapons. It was understood that the Crown did not resist the contention in ground of appeal 14. This charge in the indictment had been discussed by the trial judge at pages 49 to 51 of her charge to the jury. It was not clear from what she had said what it was that the jury had to accept before conviction. It appeared that she was saying that the jury had to accept the evidence of both Ruth Ramage, the forensic scientist, and Daniella Benson before there could be a conviction.

[68] Senior counsel moved on to consider the terms of ground of appeal 8. Leave to appeal had been granted only in relation to part B of this ground. The ground amounted to a criticism of the directions of the trial judge in relation to the possible application of the Moorov doctrine. It focussed on the group of charges comprising charges 20 and 24. The appellant's contention was that the Moorov doctrine was not capable of being applied as between charges 20 and 24 in the indictment, because there was insufficient similarity between them. Charge 20 related to but a single occasion which involved the allegation of the appellant acting along with others, whereas charge 24 involved the allegation of the appellant acting in the way alleged on various occasions alone. There were other dissimilarities between these charges. The trial judge had dealt with these matters between pages 8 and 10 of her second supplementary report. In connection with this submission senior counsel reminded us of what had been said by the Lord Justice General at pages 73 to 74 in Moorov v Her Majesty's Advocate 1930 JC 68; he also relied on the observations of Lord Sands at page 88. All that the evidence here showed was, at best for the Crown, a general disposition to commit assaults. He also relied on Beaton v Her Majesty's Advocate 2004 S.C.C.R. 467 and B v Her Majesty's Advocate 2009 JC 88.

[69] Senior counsel proceeded to deal with ground of appeal 12. The simple point raised was that there had been no evidence of injury to the complainers in respect of charges 1, 3, 4, 6, 7, 9, 11, 12, 14 and 24. It was submitted that in the absence of evidence of injury, the aggravation of "to his injury" fell to be deleted from the end of each of the convictions on these charges. In this connection reference was made to the account of the evidence in relation to these charges given by the trial judge in her second supplementary report from page 10 onwards. While it was accepted that a bruise might be classified as an injury if it were spoken to in evidence, the point here was that there had been no such evidence. It seemed that the complainers had not been asked about whether they had been injured. Many of these particular assaults had not been reported at the time. Issue was taken with what the trial judge had said at the bottom of page 16 of her second supplementary report.

[70] At this point in his submissions, senior counsel reverted to consideration of ground of appeal 7. He felt obliged to draw our attention to Grimmond v Her Majesty's Advocate 2001 S.C.C.R. 708. In that case a trial court had decided that the evidence of a clinical psychologist in relation to the behaviour likely to be demonstrated by an abused child was inadmissible. Reference was made to paragraph 10 of the opinion of the trial judge. It was in consequence of this decision that Parliament had enacted section 275C of the 1995 Act.

[71] Senior counsel went on to address those grounds of appeal that related to the Crown's alleged failure to disclose relevant material. These were grounds 2, 1A and 3. He made it clear that he was unable to support ground 3 as a free standing ground of appeal. He explained the nature of ground 2. It was concerned with the failure of the Crown to disclose to the defence copies of all statements, including statements made to social work investigators by the complainers in respect of their complaints about the conduct of staff, including the appellant, at Kerelaw School, prior to the trial of the appellant, in the hands of the police or produced by the investigation into alleged abuse of children at Kerelaw School carried out in 2004 by the City of Glasgow Council working with the police. It was contended that that failure had resulted in a miscarriage of justice. This ground of appeal related to all charges in the indictment apart from 45. There were five particular sets of material to which this ground related, which were listed on page 17 of the appellant's written submissions. The first of these was a record of an interview with S MacD, to whom charges 20 and 21 in the indictment related, conducted by Derek Biddy and Linda Finlayson of the Kerelaw Investigation Team. This document came into the possession of the appellant after his trial as a result of one of his former colleagues having had possession of it. A similar version of the document had been recovered under the commission and diligence procedure undertaken in the appeal process. It was a detailed document extending to 6 pages dealing with the allegations made by Mr MacD. The second item consisted in material also relative to S MacD contained in items 1, 2 and 3 of the second schedule of documents produced in connection with the grounds of appeal, which was part of number 26 of the appeal process. This took the form of daily logs or reports on his activities at the school relating to a range of dates, also a report to the children's panel relating to an allegation that S MacD had assaulted a member of the staff at the school, and a letter to the reporter to the Children's Panel in respect of him dated 27 May 1987. This item also included the documents in the fourteenth schedule of documents, which were essentially social work documents relating to S MacD which had been disclosed by the Crown on 30 September 2008.

[72] The third item relied upon in connection with this ground of appeal was a police statement of Catherine Gillan, referring to her interview of S MacD. This constituted item 2 in the thirteenth schedule of documents.

[73] The fourth item of the material to which this ground of appeal related comprised the documents listed in paragraphs 4, 5 and 6 of the second schedule of documents attached to number 26 of process. These were, as regards paragraph 4, daily logs or reports of the activities at Kerelaw School of M P, the complainer in charges 24 and 25 in the indictment, containing entries relating to a period between November 1986 and November 1987, as regards paragraph 5, a list of leave dates for M P between December 1986 and May 1987, and, as regards paragraph 6, a letter from Graeme McKinstry & Company, Solicitors, dated 10 July 1987 to the headmaster of Kerelaw School, on behalf of M P.

[74] The fifth item referred to in this ground of appeal consisted in the police statement of May McFarlane, who had worked at Kerelaw School in various capacities from the December of the year in which it opened until 6 May 2004, to be found as the first document in the thirteenth schedule of documents, 71 of process. This statement was dated 29 September 2005.

[75] Senior counsel contended that the material specifically referred to had not been with other material at Ayr Police Office in May 2008 when the Commissioner went there. Police statements were handed over on 24 April 2010 relating to Catherine Gillan and May McFarlane. The records relating to S MacD and M P were ultimately disclosed on 30 September 2008. Linda Carmichael had been a witness at the trial. Item 1 referred to in the ground of appeal had not come from the Crown. It must have been in the hands of the police in relation to the investigation of matters at Kerelaw School in 2004. It would have been of considerable assistance to the appellant's advisers at the trial. All of this material should have been in the hands of the defence at the time of the trial.

[76] Senior counsel recognised there was an issue as to what was in fact disclosable. He started from the position that most of the material concerned had been given to the appellant's advisers by the Crown; so it was for the Crown to say that it did not have this material prior to the trial. Senior counsel recognised that no attempt had been made by the appellant's advisers prior to the trial to recover material by means of commission and diligence; that was a basis of criticism of the appellant's previous representation.

[77] Senior counsel said that the appellant had first appeared on petition on 20 December 2004. At least as at that stage, the police were under direction of the Crown. So he argued that any material in the possession of the police from that date onwards was to be regarded as in the possession of the Crown as prosecuting authority and potentially disclosable. Senior counsel said that, for the assistance of the court, he had prepared a file of correspondence with the Crown relating to disclosure, which was number 74 of the appeal process. The first item was a letter from the procurator fiscal at Kilmarnock, dated 14 April 2005 to Mr Andrew Gibb which offered all necessary access to the school records, which were to be placed in the police office in Ayr. The second item was a letter from the same source to Mr Gibb, dated 19 May 2005 in which access was offered to such Kerelaw School log books as appeared to exist, although it was recognised that they were not comprehensive. The third item was a letter, once again from the same source, dated 7 June 2005 on the subject of the personal files of the complainers which were said to be in the possession of the police.

[78] In connection with the matter of disclosure senior counsel relied upon McDonald v Her Majesty's Advocate 2008 SCCR 954 particularly paragraph 60 in the judgment of Lord Rodger of Earlsferry. It was first said that the Crown were not under a duty to comb through all material in their possession on the lookout for anything that might assist the defence. Senior counsel accepted that position. However, it was submitted that the Crown ought to have known of what classes of material were available and drawn them to the attention of the defence. The personal files of S MacD and M P had not been said to be available. However, the solicitors acting for the appellant did not request particular personal files. It appeared that they had not made any systematic effort to discover what was available or what was missing. They did not know what they were looking for. However, what was referred to as the Dead File Master List showed material that might or might not be available. Senior counsel accepted that the burden had been on the appellant's advisers to peruse the records, with one qualification. It was that the records were in "something of a mess". The letter from the procurator fiscal, dated 7 June 2005 number 74/3 of process referred to the work of Linda Carmichael and showed that personal files existing in relation to complainers were in the possession of the police. However it appeared that that was not interpreted by the appellant's advisers at the time as meaning that the personal files of S MacD and M P were there.

[79] With particular reference to ground of appeal 1A, which related to the circumstances existing at Ayr Police Office, senior counsel drew our attention to a letter from the procurator fiscal at Kilmarnock, dated 21 July 2005, number 74/4 of the appeal process. It related to the conditions for viewing the records there. It was accepted that some conditions were necessary for the protection of important records. A rigorous trawl of the records at Ayr Police Office had not been conducted by the appellant's advisers. They had not clarified what they were looking for. A challenge could have been mounted relating to the conditions for the inspection of the records but that was not done. They did not avail themselves of the procedure of a commission and diligence. Senior counsel drew our attention to the transcript of the evidence on 16 March 2006 of Detective Constable William Stokes to be found in schedule 12. He described from page 10 onwards the extent and state of the documentary records of Kerelaw School that had come into the possession of the police. He explained that the way that police had approached access to these records was that they expected from the appellant's advisers a specific request for some document identified. He recognised that if the appellant and his legal advisers had made a comprehensive examination of the documentation in being the task would have taken years.

[80] Senior counsel then drew attention to a letter from Mr Andrew Gibb to the procurator fiscal at Kilmarnock, dated 8 December 2005 requesting details of the statement taken from S MacD on the occasion of his interview on 10 October 2004 by Linda Finlayson and Derek Biddy. It was common ground that that request had not been responded to by the procurator fiscal. However, senior counsel accepted that he could not say that the Crown had actually had that document at that stage. The letter from the procurator fiscal dated 15 December 2005, 74/6 of the appeal process indicated that the police officer responsible at Ayr did not have knowledge of those particular documents, but that the appellant's advisers could obtain access to search for them; the procurator fiscal did not have the manpower to undertake that task. A similar response was given in a letter of 16 January 2006, 74/7 of process to a defence request for the visitor's book relating to Kerelaw School.

[81] Senior counsel went on to consider the evidential significance of the documents not disclosed in the light of the test formulated by the Supreme Court in MacInnes v Her Majesty's Advocate 2010 SCCR 286. That test was whether there was a "real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed", as appeared from what was said in paragraphs 20, 24, 28, 30, 35 and 39. In connection with ground of appeal 2, senior counsel emphasised the importance, so far as the defence was concerned, of the statement given by S MacD at interview with the Social Work Investigative Team previously mentioned, which, despite a specific request for it, was not disclosed. Senior counsel argued that the contents of the interview could have been used to discredit S MacD as a witness in relation to charges 20 and 21 in the indictment. In the interview he denied that he had been abused at the house of any member of the Kerelaw School staff whereas charge 21 averred just that. Senior counsel went on to confirm that Derek Biddy and Linda Finlayson had not been on the Crown witness list; furthermore, he said that the interview document had not been among the material at Ayr Police Office.

[82] Senior counsel went on to consider the material contained in number 32 of the appeal court process at tab 4(b) consisting in, first, daily logs, second, a report to the Children's Panel, and third a letter to the reporter to the Children's Panel. These documents had been provided to the defence on 30 September 2008. He was unable to say that this material had been at Ayr Police Office. Viewed against the "real possibility" criterion, he was unable to say that these individual documents would pass the test. However, it was a question of the overall picture that they might have assisted in creating. Senior counsel asserted that if this material had not been at Ayr Police Office, it must have been in the hands of the procurator fiscal. He went on to consider in detail the terms of the particular items in tab 4(b) of 32 of process.

[83] He then drew attention to the documents set out in number 32 of process, tab 49(b), particularly items 4, 5 and 6, which related to M P. He was noted as having not wanted to go home from school, in the entry relating to 23 January 1979. That was inconsistent with the suggestion that he was being abused. It would have been useful in cross examination. Item 6, the letter from M P's solicitors dated 10 July 1987 could also have been used in cross-examination, in respect that, while P had approached his solicitors relating to an alleged assault by Steven Doherty, he had made no similar approach in relation to alleged assaults by the appellant.

[84] Senior counsel next proceeded to make submissions on ground of appeal 5C. It alleged that the appellant had suffered a miscarriage of justice in respect of the failure of his legal representatives to seek a commission and diligence for the recovery of the relevant local authority and social work records relating to the complainers. He began by observing that it might not have been necessary to go so far as to seek a commission and diligence, depending on the circumstances. However it had to be noted that the request made by the defence solicitors for the interview document relating to S MacD had not been followed up. The records relating to certain complainers had been recovered by commission and diligence in the hands of the City of Glasgow Council following upon the trial. Those had not been among the records at Ayr Police Office. For example the material now produced in the sixth schedule of documents, item 2(a) to (e) could have been recovered; these included the MacD interview. Document 2(b) was potentially important not so much because of what was in it, but what was not in it, in particular the appellant's name. It could have been used in the cross examination of S MacD. Further it did not refer to sexual abuse at Kerelaw. It appeared that there had existed material relating to other pupils at Kerelaw which contained references to the effect that they were "happy at school". Examples of that were to be found in the sixth schedule items 3(a) and (b) relating to W S. Further examples of similar material were to be found in the ninth schedule of documents, items (i), (ii) and (iii). All of this material should have been recovered before the trial. It was submitted that no reasonably competent practitioner would have failed to take the steps desiderated. All of this material would have been of assistance in cross-examination. Of course the court would require to take into account what was said in the Anderson response from Mr Graham Robertson, number 31 of process, on page 2 of which it was said that, at a consultation in December 2005, the appellant indicated that he did not wish further recovery of documents to be undertaken, since there had been enough delay and he wished the trial to proceed as scheduled. A similar point was made in the Anderson response dated 25 November 2009 from Messrs Balfour + Manson, number 54 of process.

[85] Senior counsel then turned to deal with ground of appeal 5A, which was focussed upon the alleged failure of counsel to cross examine Crown witness 16, M P on the inconsistency between his evidence in chief on 14 February 2006 in respect of charges 24 and 25 and the contents of Crown production 13 (Crown documents tab 17). The material concerned showed that M P's time at Kerelaw School was happy; progress had been made; and that he wanted to remain there. Reliance was placed on Kelly v Her Majesty's Advocate 2006 SCCR 9. It was to be observed that Mr Graham Robertson in his Anderson response, dated 21 November 2008, did not specifically deal with the content of this ground of appeal.

[86] Senior counsel went on to deal with ground of appeal 4, which is founded upon the criticism that no attempt had been made by the appellant's legal advisers to obtain the evidence of George Torrance on commission. The evidence which this witness could have given would have been significant. The appellant had been particularly anxious to have him called as a witness. He had provided an affidavit on 27 January 2010 which was to be found in the eleventh schedule of documents. In addition, there was a precognition taken from him, schedule 5 item 7 and a police statement, schedule 5 item 8. There was no apparent reason why arrangements could not have been made to take the evidence of this witness on commission. Expense was not an issue. Reliance was placed upon McIntyre v Her Majesty's Advocate 1998 J.C. 232 and Winter v Her Majesty's Advocate 2002 S.C.C.R. 620.

[87] Senior counsel then proceeded to make submissions relating to ground of appeal 11, based upon the decision by the appellant's advisers at the trial to enter into a joint minute. The joint minute itself was item 3 in the documents, volume 1. The fact was that the periods of residence of complainers in the school were uncertain, yet they had been agreed. The indictment itself had been amended at the close of the Crown case, in order to make it consistent with the material in the joint minute. The Crown, in the absence of agreement, would have had difficulty in identifying the dates of residence of complainers. The dates concerned were of importance, as was observed by the trial judge in her charge to the jury when dealing with the application of the Moorov doctrine. There were inconsistencies between the contents of the joint minute and evidence given by certain complainers in certain respects. There existed a register of admissions and discharges to and from the school, Crown production 128, item 21 in volume 2 of the Crown's documents. The dates in it did not correspond with the contents of the joint minute. Other records also did not correspond with it. The critical question was whether the appellant had given instructions for the joint minute to be signed. It was accepted that the joint minute had been lodged and had been read to the jury on 22 March 2006 at the close of the Crown case and that the appellant had raised no objection to that being done. However, it was submitted that the appellant had had no obvious interest in the conclusion of the joint minute.

Submissions of the Respondent

[88] The Advocate depute began by referring to and relying upon the Crown's written submissions. Following the order of matters adopted by the appellant, he dealt, first, with ground of appeal 7. There were two parts to this ground, first criticism of the trial judge in admitting hearsay evidence, and, second, misdirection of the jury in relation to the evidence. As regards the first criticism, the Crown relied upon the provisions of section 118(8) of the 1995 Act. There having been no objection to the admission of the evidence in a situation in which the appellant was legally represented, it was not open to him now to argue that his conviction should be disturbed on this ground. The Crown's position was that it had not wished to lead evidence of the remarks as such. It was concerned to lead evidence of the reaction of D E to revisiting the school. However, the trial judge had directed the jury correctly that the hearsay evidence could not provide corroboration for what a complainer said in evidence. So far as the evidence of behaviour was concerned, it was submitted that part of the evidence was admissible. In that connection reliance was placed on Walkers on Evidence, paragraph 1.6.3. The trial judge's direction relating to that was unexceptionable. She had had no duty to direct the jury to ignore this evidence. The position in relation to S J involved a very different situation. In his evidence-in-chief the Crown made reference to a meeting with Kathryn Jack, but nothing was elicited as to what he had said. However, in cross-examination questions had been put which were designed to elicit what he had said at that meeting. Kathryn Jack had been invited to read the terms of Crown production 109 and did so without any objection being made to that course. It set forth the content of disclosures made by S J to Kathryn Jack. Again that occurred without any objection. In all the circumstances, it could not be demonstrated that a miscarriage of justice had occurred arising out of this situation.

[89] Turning to ground of appeal 9, the Advocate depute accepted that there was some force in certain parts of this ground of appeal. It was submitted that there had been sufficient evidence in relation to charge 45 to support an assault by "seizing" the complainer, but there had not been sufficient evidence to support an assault involving the words at the end of the charge, that is to say: "and strike her on the head with your open hand, all to her injury"; furthermore, the Crown accepted that an assault had occurred on one occasion only. Accordingly the court was invited to quash the conviction as it stood on charge 45 and substitute for it a conviction in appropriate terms.

[90] The Advocate depute moved on to consider grounds of appeal 13 and 14, both of which related to the conviction on charge 24. The attack on the conviction on charge 24 formulated in ground of appeal 13 related to an alleged misdirection on page 50 of the transcript of the charge to the jury concerning the evidence of M P, the complainer. That particular criticism was misconceived. The evidence of P, read as a whole, was capable of being a reference to the hitting of golf balls. Any misdirection relating to the need to accept both the evidence of Ruth Ramage, a forensic scientist, and Daniella Benson was favourable to the appellant and could be ignored. Upon the basis of the evidence of M P and Daniella Benson, there was corroborated evidence of assaults in the gymnasium.

[91] Turning to ground of appeal 14, the position was more complicated. Fresh evidence was relied upon in the form of affidavits from Christopher Johnston and Michael Neil to the effect that renovation work had been carried out in the gymnasium at Kerelaw in 1991, after the date of the libel in charge 24. Accordingly the evidence of the witness Ruth Ramage could not be capable of providing corroboration of the evidence of M P, since it related to the use of sports balls in assaults. For a fresh evidence ground of appeal to succeed the appellant had to demonstrate that there was a reasonable explanation for the evidence concerned not having been led at the original trial and that the evidence was of such a kind and quality that the jury would have found it of material assistance in consideration of a critical issue at the trial, as appeared from Al Megrahi v Her Majesty's Advocate 2002 SCCR 509. The Crown accepted that there was a reasonable explanation for the fresh evidence not having been led at the original trial. Further, the Crown accepted that had this evidence been heard at the trial, it would have been of material assistance to the jury in its consideration of a critical issue. In relation to the fresh evidence it was a matter for the court to consider whether it could find it to be credible and reliable. The Crown had no basis for suggesting that it was not. If the court were able to accept the fresh evidence the consequence would be that there had been a miscarriage of justice to the extent that the words "strike him with sports balls" appeared as part of the conviction. Upon this basis, the Crown would take no issue with a decision of the court to that effect, if the court were satisfied concerning the fresh evidence.

[92] The Advocate depute then proceeded to consider ground of appeal 8B focussed upon the application of the Moorov doctrine as between charges 20 and 24. The criterion for the application of that doctrine was well known. Whether the Moorov doctrine could be applied was a matter of fact and degree based on the particular circumstances of the case. The criticism made here was that there was an insufficient link between the charges concerned to entitle any jury to hold that there was an underlying unity of purpose. No criticism was made of the directions given by the trial judge concerning the Moorov doctrine. The trial judge in her second supplementary report at page 8 and following dealt with this matter. She examined the evidence given by each complainer in relation to charges 20 and 24. At pages 9 and 10 she set out the basis on which a jury might be entitled to find sufficient similarities between these charges. It was submitted that the decision of the trial judge to allow the jury to consider the application of the doctrine to these charges was sound. The Advocate depute relied on Reynolds v Her Majesty's Advocate 1995 S.C.C.R. 504. In a situation where there were dissimilarities as well as similarities, the question was whether on no possible view could it be said that there was any connection between the two offences. Looked at in that way this ground of appeal was unsound.

[93] The Advocate depute then turned to deal with ground of appeal 12. The averments in the charges affected by this ground were that the assaults were to injury, not to severe injury. The trial judge in her second supplementary report from page 10 onwards commented upon this ground of appeal. She did so by narrating in detail the evidence given by the complainers in relation to the charges affected by it. It was submitted that, having regard to the nature and severity of the assaults described by the complainers, as narrated by her, some injury could properly have been inferred by the jury to have been inflicted by those assaults. Reference was made to the detailed points made in the Crown's written submissions relating to these matters.

[94] The Advocate depute next proceeded to make submissions relating to those grounds of appeal that related to the issue of disclosure, in particular grounds 1A and 2, ground 3 not having been argued. The Advocate depute referred to the written submissions for the respondent relating to these grounds and to the authorities referred to therein. Outlining the Crown's fundamental position, he submitted that the present case was not one of non-disclosure. A large quantity of records had been assembled at Ayr Police Office and access had been given to the appellant's advisers to those records. Both the Crown and, no doubt, the appellant's advisers, had experienced difficulty in handling such a large volume of material, but the fact of the matter was that access had been given to it. In the end, the appellant's advisers had engaged in detailed and prolonged discussions with the procurator fiscal as a result of which much material which they had specifically requested was furnished. As regards the records assembled in connection with the City of Glasgow Council's investigation into Kerelaw School in 2004, they had not been in the possession of the Crown. It followed that, in relation to that material, the Crown had no duty of disclosure. While there had been some comment upon the manner in which the police had exercised control over the material at Ayr Police Office, no complaint had ever been addressed to the Crown relating to those matters or to the matter of access to the records generally.

[95] It was important to recognise what the Crown's duty was and what it was not. In that connection, the Advocate depute relied on MacDonald v Her Majesty's Advocate 2008 SCCR 954 and particularly what was said in that case by Lord Rodger of Earlsferry at paragraph 60. In that passage, Lord Rodger rejected the idea that there was a duty on the Crown spontaneously to comb through all the material in their possession on the lookout for anything which might assist the defence and so should be disclosed. Their duty was to disclose disclosable material of which they had become aware, or to which their attention had been drawn, while diligently carrying out their core duties of preparation and prosecuting the case. That approach to the matter had been adopted by the Crown in this case.

[96] As regards the document of which so much had been made in argument, the interview notes relating to S MacD's interview with Derek Biddy and Linda Finlayson on 10 October 2004, the appellant's counsel had accepted that this document had not been among the material at Ayr Police Office. It had been in the hands of Glasgow City Council's Social Work Department. It followed from that state of affairs that this material was not the subject of any duty on the part of the Crown to disclose. The document had been passed to the appellant by lay persons after conviction. In any event, esto there had been a duty of disclosure in relation to that document, the question arose as to whether its non-disclosure until after the trial had brought about a miscarriage of justice. In that connection reference was made to the test to be applied in such circumstances, set forth in MacInnes v Her Majesty's Advocate 2010 SCCR 286, at paragraph 24 in the opinion of Lord Hope of Craighead. Adopting that test, it could not be shown that there existed a real possibility that the jury might reasonably have come to a different verdict in the instance concerned. In that connection, it had to be recognised that S MacD had been cross-examined in relation to inconsistencies between the record of the interview with social workers, referred to in this ground of appeal, and his police statement. Reference was made to the transcript of his evidence on 23 February 2006 at page 129 line 6 to page 132 line 7. It was the witness's position that he had not mentioned sexual abuse to social workers because he had not been asked about it. It was clear from the nature of the cross-examination of this witness that those representing the appellant had knowledge of the existence and content of this interview record. Whilst the document itself was not put to the witness, given his response to the general line of questioning described, putting the document itself to the witness would have been unlikely to elicit a different response.

[97] The Advocate depute then moved on to consider ground of appeal 5A, focussed upon an alleged failure to cross-examine the witness M P on certain specified matters. The Crown accepted that Crown production 136 had not been put to this witness in cross-examination. Reference was made to the transcript of evidence relating to 14 February 2006 at pages 60 to 97. It was submitted that, in fact, this witness had been challenged in cross-examination about prior inconsistent statements made to the police and the appellant's defence was undoubtedly put to him. Exactly what and what was not put to a witness during the course of cross-examination was a matter falling exclusively within the discretion of counsel. In any event, there was no direct relationship between the material in that production and the evidence of the witness concerning his abuse. As was pointed out by the Lord Justice Clerk in Ditta v Her Majesty's Advocate 2002 S.C.C.R. 891, the court would not entertain Anderson appeals where all that was suggested was that, with the benefit of hindsight and further investigation, it could be seen that the defence could have been stronger or that better judgments could have been made on strategic and tactical matters.

[98] The Advocate depute went on to make submissions in relation to ground of appeal 5C, which was focussed upon the alleged failure of the appellant's legal advisers to seek commission and diligence for the recovery of local authority records relating to the complainers, in a variety of respects. A part of the background to this matter was that during the course of the preparation of the case for trial, there was evidence to the effect that the appellant had become dissatisfied with delay, which was causing stress to him and his family. In these circumstances he had not wished further steps to be taken as regards the recovery of further documentary material, which would have resulted in more delay. In any event, were it to be concluded that the failure to take the steps desiderated was culpable, that did not amount, in the circumstances, to defective representation. The appellant's defence at the trial was that the complainers were mistaken or lying. That defence was adequately and effectively put to the jury. All of the witnesses were cross-examined in line with that defence. In any event, it was entirely conjectural as to what material would have been recovered. The Advocate depute went on to rely on Lindsay v Her Majesty's Advocate 2008 SCCR 391 at paragraph 19. The ground of appeal involved there was an alleged failure to obtain certain forensic reports. The court had said that for such a ground to succeed, the appellant would have required to show that such reports would have demonstrated a specific outcome. By analogy here the same point could be made.

[99] The latter part of this ground of appeal related to an alleged failure to enter into a joint minute regarding the non-availability of certain records. As regards that, it must have been evident to the jury that some documentary material was available and that other documentary material was not. In any event, it was impossible to say that that alleged failure was productive of a miscarriage of justice.

[100] The Advocate depute then turned his attention to ground of appeal 4, focussed upon an alleged failure in representation in respect that no attempt was made to obtain the evidence of George Torrance, a former headmaster of Kerelaw School on commission, when it became clear during the course of the trial that Mr Torrance was unable for health reasons to give evidence in court. The Advocate depute submitted that there had been discussions concerning the position of Mr Torrance, involving the appellant, when it became apparent that he would not be fit to attend the trial. In the end, the appellant accepted that he should not be called to give evidence. That was in contrast to the appellant's attitude regarding Mr Robert Forrest, who was flown back to the United Kingdom from New Zealand to give evidence at very substantial expense. In any event, it appeared that there had been other evidence from other witnesses covering matters about which Mr Torrance could have testified. In that respect, as narrated at page 14 of the trial judge's supplementary report, evidence was given by Robert Yarr, who had worked at the school, latterly as deputy headmaster. His period of employment there in part covered the period which could have been spoken to by Mr Torrance. Furthermore there had been evidence from Dr Norman Clark, a consultant forensic psychiatrist who regularly visited Kerelaw on a professional basis for over 25 years. He met the young people at Kerelaw School on a regular basis, mostly in a one-to-one context. In the course of speaking to young people at the school this witness had never been made aware of allegations of abuse. Furthermore, it was ultimately a matter of discretion for the advocate conducting a case as to whether particular witnesses were or were not called, as appeared from McIntyre v Her Majesty's Advocate 1998 J.C. 232. In addition to these considerations, the Advocate depute pointed out that there had been a refinement in the approach taken to these matters by the appellant's advisers, as appeared from volume 5 of the Balfour + Manson file page 337. There had been a discussion relating to how the case for the defence was to be concluded and the appellant agreed with the advice that a strong finish for his case would be provided by the evidence of Robert Forrest and Ray Bull. Reference was also made to page 315 of that file. The handling of matters in that way was a proper exercise of counsel's discretion.

[101] Finally, the Advocate depute dealt with ground of appeal 11. He accepted that the establishment of dates in relation to the charges in the indictment was important. That was particularly so because the Crown relied on the application of the Moorov doctrine for corroboration. It had been indicated by the Crown at the start of the trial that there had been difficulty about gaining access to accurate information as regards the dates. The Crown would endeavour, as the trial progressed, to refine the dates as much as possible. As the trial progressed the dates were examined in relation to a variety of sources, namely Crown productions 128, 133, 134, 144, 159, 143, 140, 153, 154, 138, 151, 142, 152, 155, 147, 150, 156, 148 and 139. Reference was also made to the recollection of various witnesses about such matters. The terms of the joint minute were the subject of ongoing discussion between the Crown and the representatives of the appellant. In due course, the dates in the indictment were amended in the light of facts that emerged from investigation. The dates in charge 21 were extended. In relation to charges 4, 11, 12 and 13 the periods of libel were changed but not extended. In charges 1, 3, 5, 6, 7, 8, 9, 10, 14, 15, 16, 20, 24, 25 and 45, the dates of the libel were reduced, which was beneficial to the appellant.

[102] To some extent there was a conflict of fact regarding the preparation and signature of the joint minute. On the one hand the appellant claimed that his agreement to it had not been given. On the other hand evidence had come from the appellant's former advisers to the effect that the joint minute had been explained to him and that he had in fact agreed to its signature. The court would require to resolve that issue. It had to be recalled that the appellant had been present when the terms of the joint minute were read in court and heard what was said. He did not take issue with that, or protest in any way at what had been done. It stretched credibility that, all the while, he had disapproved of what was done. In any event, it had not been demonstrated that the signature of the joint minute, even if unauthorised, had resulted in a miscarriage of justice. In regard to the contents of the joint minute there was no evidence to show that there had been any fundamental defect in the case. It had never been put to pupils at the school that they were not in fact at the school when they said that they were. The position of the Crown was that it could have proved the dates concerned had it been necessary to do so, although with the expenditure of much time and labour.

The Decision

[103] It is our intention to deal with the several grounds of appeal in this case in the same order as they were discussed in the debate before us:

Ground of Appeal 7

[104] It is evident from this ground of appeal that there are essentially two separate complaints in relation to evidence from two witnesses, Francis Tran and Kathryn Mary Jack. The first complaint is that the trial judge wrongly admitted hearsay evidence from these witnesses as to what D E and S J or R had said to them. Secondly, it is complained that the trial judge misdirected the jury in what she said at pages 9 and 10 of the transcript of her charge regarding these matters. It was a matter of concession that no objection was taken to the admission of the evidence concerned, although, of course, at the time the appellant was legally represented. In our view, it follows from that situation and from the terms of section 118(8) of the 1995 Act that that part of the ground of appeal relating to the wrongful admission of hearsay evidence is without merit. They provide:

"(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act - ...

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to - ...

(ii) the competency or admission or rejection of evidence at the
trial in the inferior court, unless such objections were timeously stated."

In the circumstances described and, in particular, having regard to the fact that no objection was taken to the admission of the evidence concerned, it appears to us inevitable that, to the extent that this ground of appeal seeks to reopen the issue of the admissibility of the evidence, it is bound to fail.

[105] The situation which the trial judge faced was then that certain hearsay evidence, which arguably should not have been admitted, had been admitted without objection. Furthermore there was evidence from Francis Tran concerning the demeanour of D E on the occasion of his visit to Kerelaw School. In our view, it was inevitable that that evidence had to be treated as part of the evidence in the case. So it would not have been appropriate for the trial judge to direct the jury to ignore that evidence for that reason. In that connection we refer to what is said in Renton and Brown Criminal Procedure 6^th Edition, paragraph 18.79.7. On that basis, the question comes to be whether the direction which the trial judge in fact gave at pages 9 and 10 of the transcript of the charge should be seen as a misdirection, as is alleged. The reason why it is said that it was a misdirection is that the evidence referred to was inadmissible. However, that point cannot consist with the provisions of section 118(8) of the 1995 Act. What the trial judge said in her direction was that the evidence that had been admitted could not provide corroboration for what the particular complainers were saying. That direction is plainly unobjectionable. It might have been argued that what the trial judge then said about the evidence was inappropriate, but that point was not developed in argument before us. At the end of the passage in her direction to which attention has been drawn, the trial judge obliquely referred to a complainer showing emotion or a reaction at a particular moment. We take this to be a reference to what Francis Tran said about the reaction of D E upon revisiting the school. It appears to us that that part of the trial judge's direction is not open to criticism.

[106] In MacFadden v Her Majesty's Advocate 2009 SCCR 902, it was recognised in paragraph [17] of the opinion of the court that the provisions of section 118(8) of the 1995 Act would not invariably foreclose an argument founded upon defective representation. However, in the present case there is no such argument advanced arising out of the circumstances underlying this particular ground of appeal. Although our attention was drawn to Grimmond v Her Majesty's Advocate 2001 S.C.C.R. 708 in connection with this ground of appeal, it appears to us that it has no bearing on the matters raised. What was proposed to be done in that case by the Crown was to lead the evidence of a clinical psychologist in relation to the likely behaviour of a vulnerable witness, which course was objected to. That seems to us to have no parallel to the circumstances outlined in this ground of appeal. For all these reasons we reject ground of appeal 7.

Ground of Appeal 9

[107] The evidence in support of the conviction on charge 45 in the indictment is described by the trial judge at pages 5 and 6 of her original report. In our view, the evidence of A-M B and C G was sufficient to justify a conviction for assault involving the seizing of the complainer by the clothing. However, it is evident that their evidence, the only evidence in fact proffered in support of this conviction related to one occasion only. Furthermore, as was accepted by the Crown, there was not sufficient evidence to justify the words "and strike her on the head with your open hand, all to her injury" being part of the conviction. In these circumstances we shall quash the conviction on charge 45 as it stands and substitute for it a conviction in which the words "on one occasion" are substituted for the words "on various occasions" and in which the words "and strike her on the head with your open hand, all to her injury" do not appear.

Ground of Appeal 13 and 14

[108] It is now accepted that the terms of ground of appeal 13 are inaccurate in respect that M P did give evidence that balls were both thrown and hit by golf clubs at him. In any event, the conviction on charge 24 does not indicate how the balls were propelled; it refers only to the complainer being struck by such balls.

[109] At pages 50 to 51 of the transcript of her charge the trial judge directed the jury that if the jury were to accept the evidence of both Ruth Ramage, the forensic scientist and Daniella Benson and if they were to accept that what the appellant said in the presence of the latter amounted to an admission, then the evidence of Ruth Ramage and Daniella Benson could corroborate the evidence of M P. It was contended and not disputed by the Crown that the evidence of Ruth Ramage was not capable of corroborating the evidence of the complainer. In these circumstances we conclude that that particular part of the charge amounted to a misdirection. However, the matter does not end there. Turning to ground of appeal 14, it is said that evidence not heard at the trial has now become available, with a reasonable explanation for that state of affairs, to the effect that the cladding in the gymnasium examined by Ruth Ramage had been installed after the date of the offence described in charge 24. In these circumstances, that evidence was plainly irrelevant, as it now appears. Looking at the fresh evidence, which comes from Christopher Harry Johnson in the form of an affidavit, we are prepared to accept first, that, in light of all the circumstances, there is a reasonable explanation why this evidence was not available at the trial, and, second, that it satisfies the well known legal requirements for fresh evidence. We consider that the jury would undoubtedly have found it of assistance to them in making their decision in relation to charge 24. In these circumstances we are prepared to accept that a conviction on that charge, to the extent that it includes the words "strike him with sports balls" constitutes a miscarriage of justice. What we shall therefore do in relation to these grounds of appeal is quash the conviction on charge 24 and substitute for it a conviction in the same terms but under deletion of the words "and strike him with sports balls".

Ground of Appeal 8B

[110] The issue raised by this ground of appeal is whether the jury were entitled to apply the Moorov doctrine as between charges 20 and 24 in the indictment. It was of course a matter for the court to determine whether, in the particular circumstances of the case, the doctrine could be applied. In Reynolds v Her Majesty's Advocate 1995 S.C.C.R. at page 508, Lord Justice General Hope, as he then was, said this:

"As was pointed out in Carpenter v Hamilton [1994 S.C.C.R. 108] cases of this kind, while they must be approached with care, raise questions of fact and degree. That is especially so where, to use Lord Sands' expression, the case falls into the open country which lies between the two extremes, as this case does in our opinion. We accept that there was a process of evaluation to be conducted, because there were dissimilarities as well similarities. On the other hand, we do not accept that on no possible view could it be said there was any connection between the two offences."

So, in our view, in this case the question is whether on no possible view could it be said that there was a connection between the two offences. These matters were the subject of consideration by the trial judge at page 8 and following of her second supplementary report. There she carefully paraphrases each complainer's evidence, that of S MacD and M P. We agree with the view which she expressed at pages 9 and 10 of that report to the effect that the jury were entitled to find similarities in the form of the age of each complainer at the time, in their mid-teens; the gender of each complainer, male; the status of each complainer, a pupil at Kerelaw School; the relationship between each complainer and the appellant, pupil and a teacher with authority over the pupil; the time periods during which the behaviour complained of occurred, September 1986 to April 1989 and November 1986 to August 1988; the place where the behaviour occurred, Kerelaw School; and the type of behaviour, uncontrolled physical violence towards the pupil going beyond any reasonable disciplinary measures. We share the view of the trial judge that the jury were entitled, on the evidence led, to form the view that the incidents spoken about by each of these complainers were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and an underlying unity of purpose such that a jury would be entitled to apply the doctrine. In these circumstances we reject this ground of appeal.

Ground of Appeal 12

[111] The contention in this ground is that there was no evidence of injury to the complainers in respect of the charges to which it relates. In the absence of such evidence, the aggravation "to his injury" should have been deleted from the end of each charge.

[112] The trial judge in her second supplementary report to this court from page 10 to page 16 gives an account of the evidence given by the complainers in the relevant charges. In our view, this material graphically indicates just how violent the assaults were. In some instances the acts complained of were so painful that the complainer concerned was reduced to tears. They involved the infliction of a number of different kinds of serious violence. In the case of charge 1 the complainer said that the appellant "battered the fuck out of me"; "punched me in the head. He showed off his Kung Fu. He stuck the sharp end of a paintbrush into the top of my head. He shoved me down the stairs, on purpose. He'd use his Kung Fu to dislocate my jaw with his thumb, then click it back into place. ...I had the shit kicked out of me, left, right and centre...". The complainer in charge 3, G M, testified that the appellant used martial arts upon him, punched him on the nose with a closed fist and administered other kinds of violence, including Karate movements, kicking and knocking the sensation out of his leg. The complainer in charge 4, G M, was the victim of an attempt at anal penetration, which created such pain that the complainer was reduced to tears. The complainer in charge 6, R N, found kissing a girl by the appellant, was slapped, shaken, punched in the stomach and flung so that he stumbled against a bay window. This complainer was reduced to tears. The complainer in charge 7, S R or J, described receiving kickings from the appellant and punchings including punching to the jaw. The complainer in charge 9, D E, described physical attacks by the appellant, including beatings, slappings, being a guinea pig for Karate practice, the grabbing of the victim's Adam's apple so that he could not breathe, punchings and other abuse. The complainer in charge 11, A M, described being taken by the appellant into an office where he set about him with his elbows. The complainer was struck in the face by the appellant's elbows several times. He was reduced to tears. Blood came from his nose and mouth. The complainer in charge 12, A M, apart from describing sexual abuse on the part of the appellant, said that he had been punched by him in the face and put to his knees. The complainer in charge 14, J T, described being the victim of Karate chops, having his neck squeezed and receiving a very painful blow to his right ear, which caused difficulty with his hearing for several weeks; in consequence of this assault he had to take painkillers. These had been provided by a member of the first aid staff. M P, the complainer in charge 24, described being punched, kicked and pulled by the hair by the appellant. He hit him in the stomach, on the legs and head.

[113] In her charge to the jury, at pages 29 to 30, the trial judge directed the jury that, for the purposes of the kind of aggravation under consideration, bruises, small cuts, grazes, bumps and minor lacerations could be considered as injuries. With that direction we agree. It appears to us that, having regard to the descriptions of the incidents, which we have quoted given by the complainers, the jury would have been quite entitled to infer that injury had occurred and therefore to convict on the relevant charges with the aggravation of injury. For these reasons, we reject this ground of appeal.

Ground of Appeal 1A

[114] Ground of appeal 1A is concerned with the restrictions imposed by the Crown and the police in relation to the viewing of documents assembled at Ayr Police Office. In considering this ground of appeal it is necessary to recognise the nature and extent of the duty of disclosure incumbent upon the Crown as prosecuting authority. Those matters were considered in MacDonald v Her Majesty's Advocate 2008 SCCR 954, particularly in paragraphs 58 to 60 of his judgment by Lord Rodger of Earlsferry. Some of his observations are peculiarly apt in the present context where it is recognised that there was at that location a huge volume of documentation potentially relevant to the conduct of the trial. In paragraph 58, his Lordship said this:

"But, in other cases, such as commercial frauds or embezzlements, there may be a mass of other unused material, the detailed contents of which, and their possible significance for the defence, will not actually be known to the Advocate depute or procurator fiscal prosecuting the case any more than to the representative of the defence.

[59] The problem of unknown unknowns in this mass of material might be tackled by giving the defence the right to recover and sift through all the statements and similar material generated in the course of the investigation leading up to the charges against the accused. That was the solution advocated by defence counsel, but firmly rejected by the court, in McLeod v Her Majesty's Advocate [1998 SCCR 77] pp 91E-92A and, for example, p 94F and p 96A-B. The basic objection to such an approach is that it would be time-consuming and involve an enormous expenditure of effort and resources by the defence in looking through a vast amount of material in the mere hope of finding something of significance that might well not be there. An alternative approach, which might be thought to be implicit in the appellant's argument that the Lord Advocate was obliged to 'reinvestigate' disclosure - would be, in effect, to impose a comparable duty on the Crown. In other words, the Crown would be under a duty to comb the material in their possession or in the possession of the police or other investigatory authority to see whether, by chance, there was any statement or other material which would weaken the prosecution case or strengthen the defence case. The same objection based on the inefficient expenditure of effort obviously applies and, presumably for that reason, in the appeal court counsel for the appellants was careful not to suggest that the Crown were under any such obligation: 2008 S.C.C.R., p 174, paragraph [57].

[60] There is a more fundamental objection to any such supposed obligation however. The Crown's duty of disclosure is not their principal duty. The Crown's job is to prosecute, not to defend; defending is the job of the accused's representatives and Article 6 contains guarantees which are designed to ensure that they are in a position to do their job. The success of our adversarial system of trial depends on both sides duly performing their respective roles. Of course, a prosecutor must always act as a 'minister of justice' and this means that, when carrying out his duty of prosecuting, the prosecutor must do his best to ensure that the accused receives a fair trial. So the prosecutor must be alert to examine and re-examine the Crown case in the light of known and emerging lines of defence and must disclose any disclosable material of which he is aware or becomes aware while carrying out that duty. Disclosure is simply one aspect of the overall duty to prosecute the case fairly. By contrast, a duty on the prosecutor to set about investigating all the possible lines of defence to the case would be quite different and would go much further - really into defence territory. Yet that is, essentially, what would be involved in any duty on the Crown spontaneously to comb through all the material in their possession, on the look-out for anything which might assist the defence and so should be disclosed. In my view, the representatives of the Crown are under no such duty. Rather they must disclose disclosable material of which they become aware, or to which their attention is drawn, while diligently carrying out their core duties of preparing and prosecuting the case. That duty applies to all those involved in the prosecution, right from the earliest stages."

[115] Proceeding on the basis of these observations, we have no difficulty in concluding that the Crown was not under a duty to comb through the material in Ayr Police Office itself, nor was it practicable for it to do so. If it was not practicable for the defence to do so either, that cannot be said to amount to inequality of arms.

[116] What in fact happened in the present case was that the records obtained from the school were taken ultimately to Ayr Police Office, where they were inspected, to some extent, by the police. In the letter from the procurator fiscal at Kilmarnock to Messrs Balfour + Manson, dated 21 July 2005, number 74/4 of the appeal court process, intimation was given that the records from Kerelaw School were then available for inspection. The letter went on to set down certain rules for inspection, which, in the interests of security were considered necessary. The conditions were as follows:

"1. Viewing will be by appointment only and 24 hours notice is required. The police will be able to cancel at short notice should the situation arise.

2. Viewing will be between the hours of 9.00am to 12.00am and 1.00pm to 3.00pm.

3. Only two people will be given access to the records at any given time and this can include your client if you consider appropriate.

4. A police officer will be present at all time.

5. No items will be removed.

6. No briefcases, recording equipment or camera phones will be permitted in the room.

7. Any document considered appropriate to the defence should be handed to the police officer present who will photocopy it and provide you with the photocopy. The original will thereafter be forwarded to this office who will include it as a production on your behalf. You should note however that the defence will be required to cite any witness whom they are calling to speak to the document."

[117] In our view, in the circumstances of the case, there was nothing objectionable about these conditions. Plainly, in the interests of security such conditions, or similar conditions were necessary. It is also appropriate to recognise that at no stage during the preparation of the case for trial was any suggestion made to the procurator fiscal that the conditions which had been imposed for the inspection of documents were productive of difficulty or unfairness. No doubt those advising the appellant, when they came to appreciate the volume of documents held by the police at Ayr Police Office, regarded the idea of conducting a comprehensive inspection of these documents as impracticable, as indeed it was. That was a view which plainly had been reached also by those responsible for the conduct of the prosecution. In that respect, the defence were in no different position from the prosecution.

[118] In this ground of appeal, several specific points are made on behalf of the appellant. First, it is said that conditions for the inspection of the documents prevented trial counsel, agent and appellant attending together and searching for and viewing documents. It is true that the conditions fixed two persons as the maximum who could be present at an inspection at any one time. However, it was the case that the appellant personally and one of his counsel did attend and spend time in the document room. If it were thought to be necessary for a solicitor to be present on such an occasion, arrangements could no doubt have been made for the appellant's solicitors to be present in the police office but not in the inspection room. The second specific point made is that the arrangements had the effect that the prosecution knew what documents had been requested and viewed and were considered important enough by the defence to copy. No doubt that is true, but we have difficulty in seeing what disadvantage is consequent on that arrangement. If use were to be made at the trial of any particular document, it would require to be formally produced. If it were produced, inevitably it would come to the knowledge of the Crown. We see this point as nothing more than an adjunct of the normal arrangement in criminal trials that a document to be made use of by the defence is lodged as a production. The third point raised is that the arrangements entailed that all documents copied by the defence would be sent to the prosecution and included as Crown productions. The arrangement referred to in the procurator fiscal's letter of 21 July 2005 made clear that any such document would be forwarded to the procurator fiscal's office who would include it as a production on the appellant's behalf. It appears to us that that is nothing more than a helpful offer on the part of the procurator fiscal to ensure that the document was in fact produced in court for the use of the appellant. The fourth point raised was that conversations between counsel, agents and appellant whilst in the document room were monitored by a police officer. It was our understanding of the evidence that the purpose of the presence of a police officer was not to monitor such conversations but to ensure the security of the documents in the room. If such persons wished to have a confidential conversation among themselves in relation to some particular matter that arose in the course of an inspection, it would plainly have been open to them to leave the room and conduct that conversation elsewhere in the police office. The fifth point raised was that documents were only made available in respect of persons where the defence could quote a date of birth. That does not appear to us to be in any way part of the conditions that were set out by the procurator fiscal. Plainly many documents were produced where that was not done.

[119] The point was made in paragraph 77 of the judgment of Lord Rodger of Earlsferry in MacDonald v Her Majesty's Advocate that, while a failure by the Crown to disclose certain material may be incompatible with Article 6(1), it by no means necessarily follows from such a failure that an accused has not had a fair trial in terms of Article 6, or that there has been some other miscarriage of justice. This particular ground of appeal is silent on the matter of how it is contended, that, as a result of the circumstances referred to in it, a miscarriage of justice has occurred. There is nothing in this ground which suggests that, in consequence of the arrangements criticised, some particular document did not come to the attention of the appellant's advisers until after the trial had concluded and that, to quote the criterion set out in paragraph 20 of Lord Hope of Craighead's judgment in MacInnes v Her Majesty's Advocate 2010 SCCR 286, "there is a real possibility the jury would have arrived at a different verdict." In short, there is nothing in this ground of appeal that attempts to define how it is said that a miscarriage of justice has occurred as a result of the matters complained of. Nor was that done in oral submissions. In all these circumstances we reject this ground of appeal.

Ground of Appeal 2

[120] This ground is focussed upon the alleged failure of the Crown to disclose statements, including statements made to social work investigators by the complainers in respect of their complaints about the conduct of the staff at Kerelaw School prior to the trial. The ground specifies in particular the statement given by S MacD to the social work investigative team on 10 October 2004, already referred to. That document is to be found as item 4A/A in the schedule of documents referred to in the revised ground of appeal, part of 32 of the appeal court process. It is noteworthy that it is headed Kerelaw Investigation, a reference to the investigation conducted by the City of Glasgow Council in relation to events at the school. The investigation team included the interviewers Derek Biddy and Linda Finlayson. Senior counsel for the appellant accepted that this document was not among the material at Ayr Police Office. It had been passed to the appellant by a lay person after his conviction. It was understood to have been in the hands of the social work department of the City of Glasgow Council. He explained that he could not say that it had been in the possession of the police. In view of the nature of this document and the fact that it was not in the possession of the police, or the procurator fiscal, but rather in that of the City of Glasgow Council, in connection with their inquiry into Kerelaw School, we conclude that it was not a document which the Crown had any duty to disclose. This social work investigation was entirely separate from the police investigation.

[121] In any event, the witness S MacD was in fact cross examined in relation to inconsistencies that existed between the interview record just referred to and his police statement. We refer to the transcript of his evidence given on 23 February 2006 page 129 line 6 to page 132 line 7. It is clear from the nature of the cross- examination of this witness that those representing the appellant had knowledge of the existence and content of this interview record. Whilst the document itself was not actually put to the witness, there is no indication that his response to this line of questioning would have been different had that been done. In these circumstances, even if this document had been disclosable, we cannot accept that any miscarriage of justice has resulted from its non-disclosure.

[122] Although ground of appeal 2, in its terms, mentions only the report of the interview just discussed, in the course of argument before us, a second set of documents was referred to. This was material relative to S MacD, listed as items 1, 2 and 3 in the second schedule of documents referred to in the revised grounds of appeal, being part of item 4(b) in number 32 of the appeal court process. This material comprised, first, daily logs or reports relating to S MacD's activities at Kerelaw School with entries relating to a number of specified dates; second, a report to the Children's Panel detailing an allegation that S MacD had assaulted a member of the staff at the school, Grace Lindores on 17 March 1987; and third, a letter to the reporter to the Children's Panel in respect of S MacD, dated 27 March 1987. This material was passed by the Crown to the appellant's advisers on 30 September 2008. However, senior counsel for the appellant was unable to say that it had been among the material housed at Ayr Police Office. Equally, we have no reason to conclude that this material was in fact in the hands of the procurator fiscal prior to the trial. In addition, senior counsel for the appellant was unable to say that there was a real possibility that the verdict of the jury would have been different if this material had been before the court. Having had a chance to examine the material ourselves we have no reason to disagree with that view.

[123] The third item of material referred to in connection with these matters is a police statement of Catherine Gillan, an employee of the City of Glasgow Council under the Family and Criminal Justice Project Scheme. This item is to be found in the thirteenth schedule of documents, item 2. This police statement is short and general in its terms. In our view there could be no real possibility that its use at the trial could have had any material effect. The fourth category of material relied upon in connection with this ground of appeal related to Crown witness M P's activities at Kerelaw School. It includes items 4, 5 and 6 in the second schedule of documents relative to the revised grounds of appeal, part of number 32 of the Appeal Court process. The material includes three items, first, a set of daily logs relating to various dates in 1986 and 1987 relating to M P's activities; second, a list of leave dates for M P between December 1986 and May 1987; and, third, a letter from Messrs Graeme McKinstry and Company, Solicitors, to the headmaster of Kerelaw School dated 10 July 1987. While it was not disputed that this material was delivered by the Crown to the appellant's advisers after the trial, we were not satisfied that the material was known to the Crown prior to it. It may well have been among the material, inspection of which was available at Ayr Police Office prior to the trial, having regard to the nature of the documentation. In these circumstances we cannot conclude that it was material which the Crown had a duty to disclose.

[124] The final item of material which was relied upon in connection with this ground of appeal was a police statement of May MacFarlane taken on 29 September 2005. She had worked at Kerelaw School from the time of its opening in 1972 to the date of her retirement on 6 May 2004. In the statement, in relation to S MacD, she stated that she did not remember him ever having complained to her about being assaulted. She also stated that she had not witnessed any abuse or assaults of pupils by staff at Kerelaw School and was not aware of this ever having happened. Looking at the content of this statement, we are unable to conclude that its non-disclosure has resulted in a real possibility that the verdict of the jury would have been different had it been. In all these circumstances we cannot conclude that any miscarriage of justice has occurred in consequence of the matters referred to in this ground of appeal or raised in association with it.

Ground of Appeal 5C

[125] In this ground it is alleged that the appellant suffered a miscarriage of justice in respect of his legal representatives' failure to seek a commission and diligence for the recovery from the relevant local authority of the educational and social work records held by them relating to the complainers. The allegation is also made in this ground that no joint minute was entered into in which it would have been stated that significant numbers of school records and other documents were not available to the defence. Before coming to the particular matters raised in connection with this ground of appeal it is appropriate to notice certain authorities. In Ditta v Her Majesty's Advocate 2002 S.C.C.R. 891 an Anderson appeal, in paragraph [17], the Lord Justice Clerk said:

"This court will not entertain Anderson appeals where all that is suggested is that with the benefit of hindsight and further investigation it can be seen that the defence could have been stronger or that better judgments could have been made on strategic and tactical matters."

In Lindsay v Her Majesty's Advocate 2008 SCCR 391, once again defective representation was alleged, part of which allegation involved an alleged failure to instruct forensic reports. In paragraph [19] of the opinion of the court, delivered by Lord Wheatley, it was said:

"For such a ground to succeed the appellant would have to show that any such forensic reports would have shown specific outcomes. It is not sufficient to engage in speculation in this matter. The Advocate depute referred us to the cases of McIntosh v Her Majesty's Advocate [1997 S.C.C.R. 389] at page 396 and Ditta v Her Majesty's Advocate, paragraph 15-17, which say precisely that."

[126] In our view, certain things about this ground of appeal are clear. In the first place, had an attempt been made to recover the material described, it is far from certain what in fact would have been recovered, or, indeed, would have been recoverable. Secondly, even if material of the character described by the appellant had been recovered and even though it might then have been used in cross-examination, it is not clear that its use would have resulted in evidence materially different from that given by the several complainers. The fact of the matter was that, in the course of the trial each complainer was extensively cross-examined. It might be that with recovery of the material mentioned cross examination might have been more extensive, and, it might be, the force of a complainer's allegations diminished; the fact that those things did not happen, in our opinion does not amount to defective representation and a miscarriage of justice. A further matter must be taken into consideration. We heard evidence from the appellant's counsel at the trial to the effect that, by the beginning of 2006, the appellant did not wish further time to be spent on the recovery of yet more documentary material, with the risk that the trial diet might be lost. For reasons related to the stress which he felt he and his family were under, such a course of action would not have been in accordance with his wishes. We consider that that was a matter which counsel were entitled to take into account. In any event, whether further documentary material should or should not have been recovered must be seen as a matter of judgment for counsel. The approach taken here, in our view, cannot be said to be a flagrant departure from ordinary professional standards.

[127] As regards the lack of a joint minute with the content desiderated in this ground of appeal, we are not satisfied that that amounts to defective representation and a miscarriage of justice. According to the evidence which we heard from counsel for the appellant who acted at the trial, there had been evidence to the effect that much of the documentary material which constituted records from the 1970s and 1980s was not available. In these circumstances a joint minute of the kind desiderated would have added nothing to the knowledge of the jury. In all these circumstances, we are not persuaded that this ground of appeal possesses merit.

Ground of Appeal 5A

[128] This ground is focussed upon a failure to cross-examine M P on the inconsistency between his evidence-in-chief on 14 February 2006 in respect of charges 24 and 25 and the contents of Crown production 136, to be found in volume 1 of the Crown documents, tab 17, 69 of the appeal court process. Two particular points are made. The first concerns the contents of M P's individual log for the week ending 20 November, probably 1987. It contains the statement:

"M now says if he can't get into school of his choice (Ayr Academy) he would rather continue in Kerelaw than go elsewhere."

The second point arises out of the review report relating to M P dated 15 January 1988 which contains a paragraph on schooling. It contains these words:

"Whether it is appropriate for M to continue in Kerelaw until May. Ayr Academy was initially proposed but since then M and family have said it would be better if he continued in Kerelaw to allow exams to be taken."

Mr Graham Robertson appeared to accept that this material was not put to M P in cross-examination, although much other material was and the essential nature of the appellant's defence was put to him. Mr Robertson did not explain why the material to which this ground of appeal refers was not used.

[129] In these circumstances the issue for us is whether it can be said that there has been defective representation within the meaning of Anderson and hence a miscarriage of justice. In this connection what was said by the Lord Justice Clerk in Ditta v Her Majesty's Advocate, at paragraph 17, which we have already quoted in another connection is pertinent. It appears to us that this allegation amounts to no more than that the cross-examination of M P might have been more extensive than it was and embrace the points specifically referred to. That might have made the attack on his credibility that much stronger, but we are unable to conclude that the appellant's defence was not presented to the jury in a manner consistent with proper professional practice. We reject this ground of appeal.

Ground of Appeal 4

[130] This ground is focussed upon the allegation that the appellant's defence was not properly presented in that no attempt was made to obtain the evidence on commission of George Torrance, the former headmaster of the school. It is accepted that, at the time of the trial, Mr Torrance was not fit to attend court to testify. In connection with this matter, there is now available an affidavit from Mr Torrance, a precognition from him and, indeed, the Report by the Commissioner of evidence which was taken from him on 1 July 2010 under a commission. This witness had been involved with the appointment of the appellant as a member of the staff at the school. He spoke highly of his competence in several areas. Mr Torrance said that the appellant was a satisfactory member of staff, did his job well and complied with anything that he was asked to do. Mr Torrance was fully aware of the allegations made in relation to certain pupils concerning the appellant. He testified that no complaint had ever been made to him concerning such abuse, although he, as headmaster, operated an "open door policy". So far as Mr Torrance was concerned, the appellant appeared to have had a good relationship with the pupils. It is true to say that during the time of preparation of the appellant's defence and, indeed, during the trial, the appellant made clear to his advisers that he regarded Mr Torrance as an important witness who should be called.

[131] The presentation of the defence case commenced on 23 March 2006 when the appellant himself gave evidence. At that stage it was apparent that George Torrance was not well enough to give evidence. However, it was intended that Mr Robert Forrest, also a former headmaster, should be brought back from New Zealand to testify, and in fact that occurred. Mr Graham Robertson, in his evidence explained that the appellant had left the final decision concerning the calling of witnesses to him. A factor of importance in his mind was that the jury had heard evidence from three senior members of staff about the appellant's position at the school, including from Mr Robert Forrest. On learning about Mr Torrance's condition, Mr Robertson said that enquiries had been made about it and that his unavailability as a witness in court was made known to the appellant. To the extent that there was a conflict between the evidence of the appellant and Mr Robertson on this point, we prefer the evidence of the latter. The appellant had not complained about the possibility that Mr Torrance might not give evidence. There was further discussion, outlined in Balfour + Manson's file note dated 31 March 2006 in volume 5 of their file page 337, as to the way in which the defence case would be brought to a close. It was agreed that it would be concluded with the evidence of Mr Robert Forrest and Mr Ray Bull, without the evidence of George Torrance. Mr Graham Robertson said that ideally the evidence of George Torrance would have been led before the jury, had that been feasible.

[132] Having regard to the evidence which we have heard and the documentation which we have seen, in our view the position concerning Mr George Torrance can be characterised in this way. The appellant was anxious from an early stage that Mr George Torrance should be led as a witness. When it became apparent in fact that he was not fit to testify, we conclude that, with great reluctance the appellant agreed that the defence case should be closed without him, particularly having regard to the fact that Robert Forrest was being brought from New Zealand to give evidence. The possibility of Mr Torrance's evidence being taken on commission was not discussed with the appellant.

[133] While it might have been preferable if steps had been taken to take the evidence of George Torrance on commission, as soon as it became apparent that he was unable to attend court, the fact that that was not done, in our opinion, does not mean that the appellant's defence was not properly put to the jury. Other staff witnesses, including Mr Forrest, did testify in a manner that was supportive of the appellant. In this situation, we are unable to conclude that the failure to make arrangements for Mr Torrance's evidence to be placed before the jury by means of a commission amounts to a miscarriage of justice. We are not persuaded that, had his evidence been available, there was any prospect that the verdict of the jury would have been different from what it was. In taking this view, we should make clear that we do not regard the fact that the appellant reluctantly agreed that the evidence of George Torrance should not be led is necessarily determinative of the issue before us. The question remains as to whether what was done did or did not amount to a proper presentation of the appellant's defence to the jury. In any event, the decision as to whether any particular witness should or should not be led in evidence is a matter within the discretion of counsel.

Ground of Appeal 11

[134] The gravamen of this ground of appeal is that a joint minute was entered into between the Crown and the defence without the appellant's instructions. It is complained that the purpose or consequences of entering into the joint minute were not explained to the appellant. The appellant's concerns in this matter related to the dates between which the pupils were resident at Kerelaw School. The appellant was of the view that the Crown would have faced very considerable difficulty in establishing those dates, which were plainly of importance in relation to the allegations made.

[135] It is evident from the evidence which we have heard and narrated here that there was a conflict of fact between what the appellant said about this matter and what was said by Mr Graham Robertson. The appellant himself was adamant that the details of the joint minute had not been put to him and that he had given no instructions for its signature. However he did not dispute the terms of the file note on page 476 of volume 5 of Balfour + Manson's file to the effect that the purpose of the joint minute had been explained to him. Furthermore he agreed that the joint minute had been read in court at the outset of the day on which the Crown case was closed and that he had not objected to it. By contrast Mr Robertson testified that the purpose and terms of the joint minute were in fact explained to the appellant. He did not have a precise recollection of what was said on these occasions, but he said that had express instructions been given by the appellant that the joint minute was not to be signed, then it would not have been signed. He went on to explain that the appellant had heard the joint minute read in court and made no complaint about that at the time, or later. There had been very considerable discussions between him and Mr O'Rourke and the Crown relating to the dates which appeared in the joint minute, in the preparation of the case and during the trial. There had been a process of refinement of these dates in the light of documentary and other evidence that became available.

[136] In relation to the matter of the signing of the joint minute, we are unable to accept that it was signed without the consent, albeit it might have been reluctantly given, of the appellant. In this regard we prefer the evidence of Mr Graham Robertson to that of the appellant. The position of the former is, to an extent, supported by what is recorded in the file note on page 476 of volume 5 of Balfour + Manson's file; further, we can see no reason why responsible counsel should so depart from ordinary practice as to sign a joint minute in the face of explicit instructions of their client to the contrary. We are also influenced by the fact that when the joint minute was read out in court, the appellant did not register a protest, or express his dissatisfaction. While it is clear that, particularly at an early stage in the preparation of the case, the appellant had serious misgivings about the dates then proffered by the Crown for the commencement and termination of periods of residence of pupils at the school, these matters were the subject of extensive discussion and refinement. By the time that the joint minute was signed, we are not persuaded that there was any impropriety or irregularity in its signature. In any event, whether the appellant did or did not agree to the signing of the minute is ultimately, in our view, not determinative of the real issue arising in connection with it. Counsel is, of course, obliged to follow the instructions that he has received from his client in relation to the fundamental nature of the client's defence to a criminal charge. That defence, in this case, was to the effect that the complainers who alleged misconduct on the part of the appellant were lying. Thus the matters with which the joint minute dealt were not themselves part of the defence which the appellant had instructed. In the whole circumstances we cannot conclude that a miscarriage of justice occurred in consequence of its signature. We therefore reject this ground of appeal.

[137] In summary, it follows that the appellant's appeal against conviction is refused, with the exception of the convictions on charges 24 and 45, in respect of which, as we have indicated, the terms of the convictions require to be amended.