Brothers lose appeals over murder conviction Boy was only 14 when pair kicked victim's head like a football

His brother Paul, now 24, who also lost his appeal yesterday, was identified in reports of the trial, but his relationship with the 14-year-old could not be mentioned because it would have identified the younger brother.

In passing life sentences on the brothers at the High Court at Edinburgh in September 1996, Lord Abernethy refused to lift reporting restrictions preventing identification of Andrew Halliday, one of the youngest people in Scotland to be convicted of murder.

He rejected the argument of Mr Paul Cullen QC, Solicitor General for Scotland at the time, that because of the gravity of the case it was in the public interest for reporting restrictions to be lifted.

The Herald later asked the Scottish Secretary to consider using his powers to allow Halliday to be named.

The brothers were convicted after trial of murdering Mr Scott Fraser, 26, of Mill Road, Carronshore, Falkirk, on May 11, 1996, by repeatedly kicking and stamping him to death in a lane near his home. Mr Fraser was the father of a three-year-old boy.

It was alleged during the trial that there had been trouble between the victim and Paul Halliday on the day before the murder and that on the night of the attack Mr Fraser had made a pass at Andrew Halliday's 18-year-old girlfriend. This was later denied by the dead man's widow.

The 14-year-old suggested that they should follow Mr Fraser and ''give him a kicking''.

Mr Cullen told the court: ''It is one of the chilling features of this case, I regret to say, that the original idea would appear to have come from him'' (the 14-year-old).

The brothers found their victim the worse for drink in a darkened lane and punched and kicked him repeatedly as he lay defenceless on the ground, curled up trying to protect himself. They walked away then returned to attack him again.

Mr Fraser died from a combination of severe brain injury and drowning in his own blood, even if he had survived he would have been in a persistent vegetative state.

The Solicitor General said that after the incident the brothers had shaken hands and congratulated each other. ''They were proud of what they had done.''

Yesterday, at the Court of Criminal Appeal, Mr Charles Boag-Thomson QC, for Andrew Halliday, argued that his client had suffered a miscarriage of justice because of a misdirection to the jury by the trial judge.

Lord Abernethy had directed the jury that they had to consider whether the accused had acted with utter and total disregard for the consequences of their actions on the victim. He also instructed them that they must take into account all the evidence they had heard about the surrounding circumstances, whether before, during or after the attack so far as they threw light on what had happened.

Mr Boag-Thomson argued that the critical question in deciding between murder and culpable homicide was the ''quality'' of the attack carried out by the brothers. He submitted that there was nothing which happened after the assault which was relevant to that issue.

He maintained that the trial judge should have specifically directed the jury to disregard three things that happened after the attack and which may have influenced the jury in deciding on a verdict of murder. The three were:

q The brothers shaking hands and telling each other they were ''great brothers'' - perhaps indicative of a callous or indifferent attitude.

q Andrew Halliday putting his clothes in the washing machine.

q An hour-long delay in calling an ambulance.

Mr Robert Henderson QC, for Paul Halliday, adopted Mr Boag-Thomson's submissions.

Lord Rodger, the Lord Justice General, sitting with Lords Prosser and Coulsfield, said the court was satisfied that the appeal should be refused. Written reasons will be issued later.