Appeal lawyer applies for full disclosure of statements

TWO men appealing against their convictions for the murder of an elderly woman are embroiled in a legal challenge which could have consequences for the way prosecution evidence is disclosed to the defence in advance of trial or after conviction for appeals.

Heroin addict Patrick Docherty, 41, and housebreaker Brendan Dixon, 38, were found guilty of binding and beating up 91-year-old Margaret Irvine during a bungled robbery at her home in Galston, Ayrshire, four years ago. Both were jailed for a minimum of 25 years at the High Court in Kilmarnock in 2005 by Lord Hardie, who branded them "truly evil" in his summing up.

A third man, Colin Miller, 36, also from Galston, walked free from court when the charge against him was found not proven.

Dixon's solicitor, Aamer Anwar, will apply to the High Court in Edinburgh later this month for the Crown to release prosecution witness statements and other documents as part of his attempt to gather evidence for his appeal.

These include statements made by a restaurant worker who it is understood claimed to have seen two men, neither of whom she could identify, outside the dead woman's house on the day her body was found.

The restaurant worker was not called to give evidence at Docherty and Dixon's trial, despite providing evidence to a precognition officer after police reputedly told her that what she saw "could have great significance to the murder".

The Sunday Herald understands that this witness described one of the suspicious men down to the fact he didn't have laces in his boots, although she could not identify either of them. Sources close to the appeal have said she is "pivotal" and a "credible witness" whose evidence should have been available at trial.

Anwar confirmed that he hopes to obtain the documents the defence seek when the two-day case begins on August 23, although the Glasgow-based lawyer refused to comment specifically on the restaurant worker's evidence.

If he is successful, the case could have implications for other solicitors fighting alleged miscarriages of justice who have problems obtaining prosecution documents from the Crown. The current process has faced criticism from leading members of the legal system.

Gerry Considine, the president of the Glasgow Bar Association, said earlier this year that "significant" numbers of criminal cases are collapsing because key evidence is not being released to the defence in breach of Article 6 of the European Convention on Human Rights, which enshrines the right of an accused to a fair trial. In a letter to our sister paper The Herald, Andrew Smith QC also attacked the Crown for "jealously" protecting its "right" to decide what should, and should not, be disclosed.

The rules on disclosure changed two years ago after the judicial committee of the Privy Council, the UK's highest criminal appeal court, quashed James Holland and Alvin Sinclair's convictions for assault and robbery on the basis that the Crown denied them a fair trial by failing to disclose crucial documents. Previously, the Lord Advocate and Crown Office were responsible for deciding what evidence should be automatically disclosed to the defence, although the defence were able to apply to the High Court for further disclosure if they could show it was relevant to the defence. Last year, the Scottish Executive set up a review of the process.

Anwar said: "We are requesting full disclosure from the Crown because our inquires have revealed there are matters which should have been brought before Dixon's trial, which don't appear to have been. Even though this case was before the rules pertaining to full disclosure, the reality of the situation is we often find full disclosure is not being made because police, precognition officers and other individuals decide among themselves that it's not relevant. That's for the defence to decide.

"If there's no disclosure, there's likely to be more miscarriages of justice."

The restaurant worker is believed to have said she saw the men as she left her mother's house nearby and provided a detailed identification of the clothing one was wearing. However, she added that she could not identify them.

The restaurant worker refused to comment. However, her husband said: "It was strange that she wasn't called, but it's not for us to decide who appears in court.

The trial heard the men had 84 previous convictions between them. Docherty had two for assault and robbery and Dixon had four involving violence.

A Crown office spokesman said it was "not appropriate to comment" before the appeal.