Scottish High Court of Justiciary Decisons

HENRY GEORGE WILLIAM COLEMAN, STEVEN DOUGLAS, SHAND DICKSON CAVEN, EDWARD DIAMOND, DAVID HUNTER, GOR v. HER MAJESTY'S ADVOCATE [1998] ScotHC 20 (14th December, 1998)

On 25 September 1998 the court held that the trial judge had misdirected the jury in regard to charge 3. We refer to the opinions delivered by the members of the court in regard to that question. The case was put out for a continued hearing in respect of matters arising from that conclusion.

Whether there was a miscarriage of justice in respect of a particular accused depends on the nature of the misdirection and the evidence relating to him. The main deficiency in the trial judge's directions to the jury was his failure, in dealing with the question whether an individual appellant should be held responsible for the murder of the deceased, to direct the jury to consider at what stage the purpose of the mob became murderous, and whether at that stage he was supporting it in that respect. The effect of his directions was to indicate to the jury that it was enough that he had at some point been one of its members.

We begin by considering the appellants Coleman, Caven, Hunter and McLean. Counsel for each of the appellants invited the court to hold that there had been a miscarriage of justice. The Advocate depute made no substantive submission to the contrary. We are satisfied that the submission made on behalf of these appellants is well-founded. For present purposes it is sufficient to refer to the summary of the evidence relating to each of the appellants which is set out in the opinion of the Lord Justice Clerk. The evidence that they participated in the stabbing of the deceased was not wholly clear or consistent. It is unnecessary to rehearse this summary in full, but we note that, as regards Coleman, the witness Andrew Affleck described him as being "at the back". Thomas Brown, Senior said that he saw him at one point holding one of the deceased's legs, but he had given a statement to the police shortly after the incident in which he made no mention of Coleman and said that he could only identify five assailants. As regards Caven, the evidence of Thomas Brown, Senior appeared to be that at the critical time he was merely standing in the vicinity of the deceased. In any event there was evidence that he had made no mention of Caven when he made a statement to the police on 27 March 1996; and that he had told an old friend Caven was merely standing around at the back with a stick. While Margaret Brown said that Caven had a knife and described him as leaning over the deceased with it, there was evidence from Andrew Affleck and Marie McBreen which might indicate that at the critical time he was fighting with her. As regards Hunter, there was no independent evidence of his participation. Thomas Brown, Senior and Margaret Brown did not appear to provide clear evidence that he was taking part when the deceased was being stabbed. Finally, as regards McLean, there was evidence from a number of witnesses that he was involved in a fight with Marie McBreen or Andrew Affleck at the time when the deceased was being stabbed. In that state of the evidence there was plainly an open question as to whether or not each of these appellants should be regarded as subscribing to a murderous purpose during the critical stage of the incident. In these circumstances we consider that the misdirection created a plain risk of the jury convicting when they would otherwise have acquitted. We are satisfied that there was a miscarriage of justice so far as concerns these appellants.

Counsel for the appellants Douglas and Diamond also submitted that there had been a miscarriage of justice. In the case of these appellants the Advocate depute submitted that the evidence of their involvement in the stabbing and murder of Thomas Brown, Junior was unequivocal. According to the evidence of Douglas Nicol, an independent witness, Douglas was thrusting at the deceased with a knife and trying to stab him. Andrew Affleck described him, along with the appellant Diamond, as fighting with the deceased at the critical stage. Margaret Brown said that he was leaning over the deceased with a knife. At that point the appellant Diamond shouted: "If you've got the bottle, do it". Thomas Brown, Senior also gave evidence as to hearing that remark. He said that Douglas had a knife and was one of those who had tried to pull his son down. He described him as bent over his son and, after Diamond shouted the words quoted above, holding a knife like a dagger in his hand and moving his arm as if he was stabbing him. As regards the appellant Diamond, Douglas Nicol gave evidence that he was at the material time holding down the deceased by his shoulders. There was the evidence of the remark to which we have referred above. Thomas Brown, Senior said that Diamond had a sword and was one of those who had tried to pull down his son. He and Margaret Brown spoke to Diamond holding the deceased on the ground.

For the appellant Diamond, Mr. Shead questioned whether there should be any distinction between the appellants, in a situation in which there was sufficient evidence to entitle the jury to convict each of them. It was not possible to determine what route the jury had taken in convicting his client. As against this argument it has to be borne in mind that on any view the jury were satisfied that Thomas Brown, Junior had been murdered. As the Advocate depute pointed out, there was no suggestion that anyone other than Douglas and Diamond carried out his killing. The deceased had sustained numerous wounds, including four stab wounds, all of which were potentially fatal and two of which, to the area of the chest, had caused his death. Accordingly there was ample evidence that each knew the character of the attack on him. In view of the strong and compelling evidence as to the involvement of Douglas and Diamond we are not satisfied that there has been a miscarriage of justice. The evidence indicated that each of them was knowingly involved in the stabbing of the deceased, and in such circumstances as to show at least wicked recklessness, if not an intention to kill.

However, Mr. Taylor, on behalf of the appellant Douglas, presented an argument in regard to provocation. At the trial the submission that the jury should take account of the question of provocation was made only on behalf of his client. The trial judge had plainly intended to leave it open to the jury to consider the question of provocation. At the trial there had been evidence that the deceased had run at Douglas; and that when the deceased was taken back into his house, a knife was found in his bedroom. There was evidence that such a knife had been seen at the time of the incident. In his opinion the Lord Justice Clerk noted that it was probable that the deceased had a kitchen knife with him when he rushed out of the house to confront the crowd who were running towards it. When the jury returned to the courtroom for the second time in order to obtain further directions, their foreman asked the trial judge if it was possible to delete the word "murder" and substitute the word "kill". In response the trial judge had not answered that question and had not explained the basis on which the jury could make such a substitution, although it was plain that the jury had such a distinction in mind. Although no point about provocation was taken on behalf of Diamond at the trial Mr. Shead associated himself with Mr. Taylor's submission. It was a live issue which had been raised by the jury, and the trial judge had not confined it to any particular accused.

In our view there is no merit in this point. While it would have been better if the trial judge had answered the foreman's request in the affirmative, the fact that he did not do so is of no real significance since it is obvious that he was implying that if the jury were satisfied that a particular accused was guilty only of culpable homicide, including on the basis of provocation, they could give effect to that conclusion by making the substitution to which the foreman referred. Furthermore, as the Advocate depute pointed out, in earlier passages of his charge the trial judge had explained to the jury what was meant by provocation, and directed them that if they accepted the argument based on provocation they should hold that the accused was not guilty of the wicked recklessness necessary for murder but guilty of the crime of culpable homicide.

Mr. Taylor submitted a further argument that, in responding to the question raised by the foreman of the jury, the trial judge had wrongly limited the situations in which the jury could find that a particular accused was guilty only of culpable homicide. He failed to include a situation in which there was an absence of intention to cause serious injury. In our view there is no merit in this point, since it does not raise any issue which is not otherwise covered by the need for the jury to be satisfied that the particular accused participated in an assault on the deceased and that he did so with at least the wicked recklessness which is required for a case of murder.

Both Mr. Taylor and Mr. Shead invited the court to consider the substitution of a conviction of culpable homicide in place of murder. Having regard to our remarks about the strength and compelling nature of the evidence as pointing to a case of murder so far as both of these appellants are concerned, and the fact that the jury plainly were satisfied that the deceased had been murdered in the circumstances which we have described, we consider that a conviction of culpable homicide would not be in accordance with justice.

In these circumstances we allow the appeals of Coleman, Caven, Hunter and McLean against their conviction on charge 3. We quash their convictions on that charge and substitute a conviction on that charge under exception of the following words of head (b): "and stab him repeatedly on the head and body with knives, swords and similar implements and murder him". So far as concerns Douglas and Diamond we refuse their appeals, and accordingly their conviction on charge 3 will stand. We should add that the Advocate depute invited us to consider an alternative method of giving effect to a conclusion that there was no miscarriage of justice in as regards Douglas and Diamond. This was to substitute for the terms in which they had been convicted a conviction of assaulting Thomas Brown, Junior by stabbing him repeatedly on the head and body with a knife or similar implement and murdering him, i.e. conviction independent of what was done by the mob. Having regard to the way in which the matter was put to the jury, we consider that it is more appropriate for us to leave standing the terms in which they were convicted.

We turn now to deal with matters of sentence arising out of the appeals against conviction which have been successful.

On behalf of Coleman Mr. Sutherland accepted that his client, who was 30 years of age, had an extensive record. This included a conviction on 14 March 1995 on two charges of assault with intent to rob, for which he had received concurrent sentences of one year and nine months. He had been released from custody shortly before the incident with which the present case is concerned. Mr. Sutherland drew our attention to the sentences which the trial judge had imposed on four other accused who had pled guilty during the proceedings. Richard Dawson or McDowall was sentenced to two years imprisonment in respect of charge 3(a). He had a number of previous convictions, but they had decreased. James Ferguson Diamond, who had a number of previous convictions, was sentenced to five years detention in a Young Offenders Institution in respect of charges 2 and 3(a). He had previous convictions for breach of the peace. Michael Hawkshaw Sim, who had no previous convictions, was sentenced to three and a half years imprisonment in respect of charges 2, 3(a) and part of 3(d). Gavin Ward, who had no previous convictions, was sentenced to 18 months imprisonment in respect of charge 3(a).

On behalf of Caven Mr. Brown emphasised that his client was involved only to a limited extent. He was said to have been armed with a baton. The day after the incident was his 17th birthday. He was now 19 years of age. He had no previous convictions.

On behalf of Hunter who was 23 years of age Mr. Allan pointed out that his client had previous convictions, but the only ones which were analogous related to breach of the peace and section 1(1) of the Prevention of Crime Act 1953. He was now 24 years of age.

On behalf of McLean, who was 21 years of age, Mr. Boag-Thomson pointed out that his only previous conviction was not analogous. After the incident he had been convicted on 31 May 1996 for assault to severe injury, permanent disfigurement and danger of life. He received a sentence of three years imprisonment. He was an apprentice painter and was still relatively young.

The appellants Coleman, Caven and Hunter were all convicted of charge 2, and to charge 3, subject now to the deletion of the words in (b) relating to the stabbing and murder of Thomas Brown, Junior. We consider that the appropriate sentences for them are eight years imprisonment, five years detention in a Young Offenders Institution and seven years imprisonment respectively. In each case the sentence is backdated to 1 April 1996. In the case of McLean, who was convicted on charges 1 and 2, and, subject to the same deletion, charge 3 we consider that the appropriate sentence is nine years imprisonment, backdated to 1 December 1997.

Counsel for Douglas and Diamond pointed out that their sentences of life imprisonment had not been backdated by the trial judge. The subsequent decision in Elliott v. H.M. Advocate 1997 S.C.C.R. 111 had shown that this should have been done. Although this is not the subject of a ground of appeal, it is plainly appropriate that we should give effect to this submission. We will accordingly quash their sentences of life imprisonment and re-impose life imprisonment backdated in each case to 1 April 1996.