Scottish High Court of Justiciary Decisons

THE LORD ADVOCATE v. IAN ADAM WHELSON GRAHAM, JOHN PURVES AND ROSS GRAVESTOCK [1998] ScotHC 4 (28th October, 1998)

In April 1998 Iain Adam Wheldon, Graham John Purves and Ross Stuart Gravestock went to trial in the High Court in Glasgow on an indictment charging them with the murder of Mark Ayton. They appeared along with a co-accused Paul Learmont, but during the trial the Crown withdrew the libel against him and the trial judge accordingly acquitted him on 1 May. On 5 May Wheldon and Purves pled guilty to a reduced charge of culpable homicide and the following day Gravestock did the same. In each case the plea was that the accused did

The trial judge adjourned the diet to allow social enquiry reports to be prepared and on 20 May he sentenced all three to 4 years detention backdated to 24 November 1997. The Lord Advocate has appealed against the sentences on the ground that they are unduly lenient.

Both the trial judge in his report to this court and the Lord Advocate in opening the appeal referred to the misleading reports which had appeared in certain sections of the media and to the ill-informed criticisms which had been published on the basis of those reports. I say no more than that the such reports and criticisms are deplorable both because they deceive rather than inform the public and because they make it materially harder for justice to be done. The trial judge disregarded all such reports and criticisms in determining the sentences and we too shall disregard them in deciding the appeal.

In imposing sentence the trial judge did not discriminate among the three respondents and the Lord Advocate did not ask this court to do so either. That approach is fully justified by the fact that all three are first offenders and there is nothing of significance in any of the social enquiry reports to differentiate one respondent from another. The three respondents are separated by less than a year in age: Wheldon is 18, but was 17 at the time of the offence; Purves and Gravestock are both 17 and were 16 at the time of the offence. The trial judge has prepared a detailed and lucid report for this court. From that report we can see that, in selecting the sentences, the trial judge was mainly influenced, not by the contents of the social enquiry reports, but by the particular and unusual facts of the case as he assessed them in the light of the evidence which he had heard and the submissions to which he had listened. This court has recognised that, in a Crown appeal of this kind, we must give due weight to the views of the trial judge, especially where the judge has had the advantage of seeing and hearing all the evidence. See H.M.A. v. Bell 1995 S.C.C.R. 244 at p. 250 D - E. Although in this case the guilty pleas were tendered and accepted before the evidence had been completed, the Crown had led all the eyewitnesses and the Crown pathologist by that stage. So here the trial judge enjoyed the kind of advantage described by Lord Justice General Hope in Bell. With that in mind I turn to the facts, which I paraphrase from the account in the trial judge's report.

I note first that the evidence showed that for some time there had been what the trial judge calls a "pattern of casual conflict and aggression" between certain youths from Balerno and certain youths from Currie. That pattern forms the background to what happened in the early hours of Sunday 23 November 1997.

The young man who was killed was Mark Ayton, then aged 19. He had been out for the evening with his brother Paul, aged 21. At roughly 12.30 a.m. on the Sunday morning they left a public house in Balerno where they had both drunk a significant amount of alcohol. The young men walked from the centre of Balerno to Bridge Road with the intention of continuing on to their homes in Currie. When they passed a point where a group of six or seven people, including Wheldon and Learmont, were waiting at a bus stop, someone in the group - but not Wheldon or Learmont - addressed an abusive remark at the Aytons. The Aytons retraced their steps and an argument followed. When things had calmed down the Aytons continued to walk up Bridge Road. Meanwhile Wheldon and Learmont had set off up a flight of steps, known as the Green Gates, with the intention of going to Wheldon's home. Wheldon had a carry-out of bottles of beer with him. From the steps the path leads through a patch of woodland and, as they were crossing the woodland area, Wheldon and Learmont, who also had had a considerable amount to drink, were singing "Flower of Scotland" - apparently prompted by a rugby international on the Saturday afternoon. The Aytons could hear the singing and the deceased, who recognised Wheldon's voice, suggested that they should pursue him. Paul Ayton, at least, armed himself with a bottle and then, having turned back, the brothers went up the steps and on for about 100 metres into the dark wooded area in pursuit of the singers. A fight ensued between the Aytons and Wheldon and Learmont, but by common consent neither side made any use of bottles. By the time a truce was called, Paul Ayton had obtained an advantage over his opponent, but the deceased had come off worse in his fight. The Aytons made their way back down the Green Gates to Bridge Road and Wheldon and Learmont followed. At the point where the Green Gates meet up with Bridge Road, there was an exchange of insults and a bottle was thrown, but eventually the Aytons ran off up Bridge Road - pursued by Wheldon and Learmont.

It is at this stage that Purves and Gravestock come into the picture. Up until this point in the evening they had not been in the company of Wheldon or Learmont nor indeed had they been in each other's company, although they knew one another. They arrived at the Green Gates area of Bridge Road when the insults were being exchanged. They were also aware of the background of confrontations between the youths in Balerno and others in Currie. Purves and Gravestock therefore joined in the chase by Wheldon and Learmont.

The deceased left the road and went into the garden of 499 Lanark Road West, either by going through the driveway entrance or by climbing over the boundary wall. The three respondents followed him into the garden and there they assaulted him in the manner described in the charge to which they pled guilty. As a result Mark Ayton died. Meanwhile Paul Ayton, chased by Learmont, had run on up to the top of the hill where he and Learmont engaged in a fight. Paul Ayton brought Learmont to the ground and proceeded to kick him on the head and face. Learmont suffered various injuries, including a fracture of his jaw. It appears that, once the assault on the deceased in the garden was over, the three respondents went on up the hill to where Paul Ayton and Learmont where fighting. That fight seems to have ended when they appeared on the scene and intervened to drive Paul Ayton off. The trial judge observes that those who saw the respondents there noticed nothing in their demeanour to suggest that they were aware that they had just inflicted a serious injury on the deceased.

The trial judge records nothing further of note in the case of Wheldon except that when, the following morning, he learned of Mark Ayton's death he immediately contacted the police and in a later, very full, interview he "admitted with a reluctance which is perhaps understandable in the circumstances that he had indeed been involved in the assault on the deceased in the garden." Similarly Gravestock went voluntarily to the police station the following day when he heard of the death of Mark Ayton.

It is necessary to say a little more about what Purves did since the Lord Advocate made reference to it. Once the fight between Paul Ayton and Learmont was over, Purves made off by a somewhat circuitous route and met up with David Doig and a girl. They all walked up to the girl's house where Purves gave her the somewhat distinctive jacket which he had been wearing at the time of the assault. Doig then joined Purves and they walked about. Eventually a car driven by the deceased's father, Mr. Ayton, drew up. Paul Ayton was in the car. They were looking for the deceased, but Purves held back and did not say anything about the incident in the garden. Purves and Doig continued their journey and at a later stage they again came across those who were looking for the deceased. Purves said that he had not seen him but, when the others had gone, he and Doig went into the garden at 499 Lanark Road West where they found the deceased lying face down. An argument ensued as to which of the two should call an ambulance. According to the trial judge the discussion appears to have been interrupted by the arrival of the deceased's father, brother and friends.

Although the Lord Advocate went through Purves' actings after the assault in some detail, he did not suggest that, in deciding the appeal, we should use those actings as a basis for distinguishing his situation, so far as sentence is concerned. Purves' actings cannot on the other hand cast any light on the cases of Wheldon and Gravestock. That being so, I have not found consideration of those actings to be of assistance in determining the appeal.

In outlining the facts I have deliberately not tried to spell out exactly what happened in the garden. This is because there was no satisfactory evidence on the point. The Lord Advocate referred to the accounts given by the respondents in their interviews with the police, but these were obviously self-serving at various points and were, to a greater or lesser extent, mutually contradictory and inconsistent with the conduct to which the respondents had pled guilty. There were no independent eyewitnesses. Not surprisingly therefore the trial judge commented that "there was little direct evidence as to the precise nature of the assault in the garden of number 499 Lanark Road West and little useful evidence of the number of kicks or blows delivered at that locus." The Lord Advocate none the less wished this court to hold, on the basis of the respondents' statements, that, at the time when the assault began, the deceased was already lying on the ground - the contention being that such an assault would be materially worse than one which began when the deceased was on his feet. In my view, however, the essential point, which is not in dispute, is that the respondents kicked and stamped on the deceased's head and body when he was on the ground and could not defend himself. Although some of the evidence was consistent with the view that a kick or kicks had landed on the deceased's face while he was trying to get up, the trial judge specifically proceeded on the basis that most of the kicking injuries had been inflicted when the deceased was on the ground. I am content to do so too. Whether the assault began with him on the ground or standing is for present purposes irrelevant and would not in this case affect the approach to sentence. Indeed, were the precise events at the start of the assault in the garden of material importance, the Crown's appeal would be handicapped precisely because the trial judge, who heard the evidence, was left in doubt on the point. In my view, however, what matters for the question of sentence is not precisely how the deceased came to be lying on the ground but the nature of the attack on him while he was on the ground.

It was after the Crown pathologist, Professor Busuttil, had given evidence that the Advocate Depute accepted the respondents' pleas to culpable homicide. In his post-mortem report dated 30 December 1997 Professor Busuttil observed:

The Lord Advocate informed us that it was on the basis of Professor Busuttil's opinion that the injuries would have required "quite severe force for their infliction" that the Crown charged the respondents with murder. Even this short excerpt from the post-mortem report shows, however, that the case was most unusual in that the assault on the deceased's head had not resulted in any skull fracture, significant bleeding into the brain coverings or externally visible brain injury. Other experts from various parts of Britain, with specialised knowledge of neuropathology, investigated the case and prepared reports. Eventually, when Professor Busuttil came to give evidence and to be cross-examined at the trial, he gave a different opinion from the one which he had expressed in the post-mortem report. The trial judge records his understanding of that evidence in this way:

The Lord Advocate did not challenge that account of the evidence. Indeed, as he explained, it was central to an understanding of the Crown's position. What had happened was that Professor Busuttil had moved from saying, in his original report, that the injuries would have required "quite severe force" to saying that, in terms of the degrees of violence seen in brain injuries, this case "was at the very end of the minor end of the spectrum". It was because the Crown proceeded on the basis of Professor Busuttil's evidence on the low level of violence that the Advocate Depute had been authorised to accept the respondents' pleas to culpable homicide. Had Professor Busuttil adhered to his original view, the Crown would not have accepted the pleas to the reduced charge.

Indeed the Lord Advocate went somewhat further. He explained that the pleas to culpable homicide had not been accepted on any purely pragmatic basis, but because the Crown were satisfied that the evidence given in the case was inconsistent with a verdict of murder. In other words the evidence taken at its highest did not support the view either that the respondents had intended to kill the deceased or that in assaulting him they had been wickedly reckless, indifferent to whether the deceased lived or died. When asked by the court, the Lord Advocate said specifically that in his view, if the trial had proceeded, the judge would have required to direct the jury that they could not convict the respondents of murder; if he had failed to give such a direction, the respondents would have had a basis for having any verdict of murder set aside on the ground of misdirection.

I have emphasised the stance which the Lord Advocate took on this matter because of its relevance to another passage in his submission as to the basis upon which this court should approach the matter of sentence. In his report the trial judge sums up his view of the nature of the assault in this way:

The Lord Advocate submitted that this court should reject the trial judge's view that the respondents "did not intend the infliction of any serious harm" and should proceed, rather, on the basis that in kicking and stamping on the deceased's head the respondents had intended to inflict serious harm on their victim.

In my view that submission was inconsistent with the Lord Advocate's carefully expounded stance that it would not have been open to the jury to return a verdict of murder. Had the evidence disclosed that the respondents kicked and stamped on the head of the deceased with the intention of inflicting serious harm on him, then it would have been open to a jury to draw the inference that the respondents displayed the necessary wicked recklessness for murder. Not surprisingly, therefore, in due course the Lord Advocate departed from the submission that the court should reject the trial judge's view that the respondents did not intend to inflict serious harm. The Lord Advocate's final position was that, while accepting that the respondents did not intend to inflict serious harm on the deceased, the trial judge ought to have had regard to the fact that this was an assault involving stamping and kicking on the head of a defenceless individual. The respondents had used "mindless violence". So far as this submission is concerned, the report by the trial judge shows beyond all dispute that, in determining sentence, he was fully aware of the disgraceful violence which the respondents had used and was in no doubt whatever that the assault had been one in which the respondents had kicked and stamped on the head of the deceased when he was on the ground and defenceless. That was precisely the nature of the crime for which the trial judge imposed his sentences and it is as sentences for that crime that we must consider them in this appeal.

What singles out this case is the extraordinary fact that, although the deceased undoubtedly died as a result of the attack on him, that attack did not actually result in manifest serious injuries to his head. I have referred to the report and evidence of Professor Busuttil which make that clear. In other words, although the respondents kicked and stamped on the deceased's head, there were no fractures and no injuries at all to the meninges or to the brain, so far as could be seen from an external examination. At most there were small, almost microscopic, haemorrhages. It is plain that the Crown had all along accepted this position since the murder charge as originally framed contains no averment of injury, far less of severe injury. As I understand the position, it is also because of this lack of injuries that the various experts remain uncertain by what mechanism Mark Ayton died - whether due to some diffuse vascular injury to the brain, as Professor Busuttil thought, or due to inhalation of vomit and blood, as others thought. Of course, for the purposes of the respondents' guilt of culpable homicide it does not matter that the precise mechanism remains unclear. What is important for an understanding of the trial judge's approach to sentence, however, is that he proceeded, and required to proceed, on the basis of the evidence as to the lack of injuries and as to the fact that, in the spectrum of degrees of violence seen in brain injuries, this case was at the very end of the minor end of the spectrum.

The various elements in the relevant circumstances can be summarised. The trial judge proceeded on the basis that the respondents assaulted the deceased when he was on the ground. The events surrounding the assault confirmed that it should be seen as part of a wider pattern of casual hostilities between certain youths in Balerno and others from Currie. That being so, it could be accepted that the respondents did not intend to inflict any serious harm on the deceased, going beyond the scope of what had previously been delivered and received in the earlier skirmishes between the Aytons and Wheldon and Learmont. The post-mortem condition of the deceased was consistent with only a minor degree of violence having been used and in particular there were no fractures to the head or body and no injuries to the meninges or to the surface of the brain. None the less, for some reason or other, the attack resulted in the death of Mark Ayton.

It was for a crime of culpable homicide of this unusual kind - where death had resulted even though the violence used was minor and there were no fractures and no injuries to the surface of the brain - and for no other that the trial judge selected the sentences of four years. It is therefore by reference to that specific form of culpable homicide and no other that we must consider whether the sentences were unduly lenient. With that in mind, I turn first to see how the trial judge explains his approach to sentencing and after that I shall consider the specific grounds of appeal put forward by the Crown.

The trial judge gives this account of his reasoning:

The grounds of appeal advanced by the Crown are:

The Lord Advocate accepted that in the first ground "violent" meant "severe". Although the grounds are set out separately in this way, when he was addressing the court the Lord Advocate adopted a global approach in arguing that the sentences were unduly lenient.

In any case where the accused is guilty of culpable homicide his victim has died. As the Lord Advocate acknowledged, in itself the fact that the victim has died does not determine the appropriate level of sentence. Culpable homicide covers conduct of many kinds and, depending on the circumstances, can appropriately attract any sentence up to life imprisonment. What a judge has to do is to consider what sentence is appropriate in the light of the circumstances as revealed by the evidence in the particular case. In this case the evidence did not indicate that the assault on the deceased had involved a high level of violence, but rather that the violence was at the very end of the minor end of the spectrum. That being so, contrary to what is said in the first ground of appeal, the length of the sentences which are imposed for assaults involving a high level of violence but not resulting in the victim's death is not relevant to any decision as to the appropriate sentence to impose for this type of culpable homicide.

The Lord Advocate sought to make the matter more vivid by asking us to suppose a situation in which a victim had been assaulted and had lived, but was suffering from a permanent impairment. Could it really ever be said, he asked rhetorically, that a sentence of four years would have been adequate? I, at least, derived little assistance from pondering that question when considering the issue in this case. For one thing, there is nothing whatever in the evidence to suggest that, had the deceased not died, he would have suffered some kind of permanent impairment. For another, the term "permanent impairment" covers such a range of possibilities as to make the question essentially unanswerable. Finally, the question ignores completely the extraordinary, but essential, features relating to the low level of violence and the absence of injuries in this case.

In referring to the low level of violence indicated by the evidence I have not overlooked the point made by the Lord Justice General in giving the opinion of this court in H.M.A. v. McC 1996 S.C.C.R. 842 at p.849 F where his Lordship observed that one had to judge the gravity of the offence from the cumulative effect of the blows rather than by reference to the force used to inflict each blow. In that case there were many injuries to the head and body. Here, by contrast, even when one judges the matter cumulatively, the low level of violence used did not result in fractures or injuries to the meninges or the surface of the brain. That is the distinguishing feature of the case: it is a case where, despite the low level of violence used and the lack of injuries, the victim died.

Although this is not spelled out in the Crown grounds of appeal, the Lord Advocate submitted that the trial judge had erred in taking into account the fact that the sequence of events leading up to Mark Ayton's death had begun with the Aytons turning back to pursue Wheldon and Learmont up into the unlit wooded area at the top of the Green Gates. That matter was, he said, irrelevant. The Lord Advocate argued that the sequence of events could be divided into two, with the break coming at the end of the fight in the wooded area. After that, he said, the effects of the Aytons' action in following Wheldon and Learmont were spent and formed nothing but an incidental backdrop to the chase and assault which had resulted in Mark Ayton's death. Doubtless there are indeed cases where an initial incident is properly treated as being separate from some subsequent incident and as having no bearing upon it. The trial judge, who heard the evidence, plainly took the view that this was not such a case and I can find no basis for saying that he erred in forming that view. One event appears to have led on to another, without any real break. We were told that there was some evidence to suggest that the fatal attack in the garden occurred within about five minutes of the skirmish in the wooded area. Even allowing for the notoriously unreliable nature of such assessments of time, it seems safe to assume that the events all happened within a relatively short period. In these circumstances it cannot be said that the Ayton brothers' initial actings were completely divorced from what happened later.

The Lord Advocate suggested, however, that, even if they could not be divorced from the later attack, the trial judge had erred in giving the initial actings any weight when considering the sentences to be imposed for the fatal assault. He went so far as to say that a court cannot properly distinguish between an attack of this kind where the victim has, not many minutes before, contributed to a violent incident involving his attackers and a similar attack on a passer-by who has had no previous involvement with the assailants. In my view such an approach would be in accordance neither with justice nor with common sense. It is also contrary to the kind of submission, which is frequently made by the Crown - as for example in McC supra - that the court should take into account the fact that a particular assault was unprovoked by the victim. And it is certainly not the approach which has been adopted by the courts in Scotland. I therefore reject this far-reaching argument of the Lord Advocate. According to the settled practice of our courts, the trial judge was entitled to attribute such weight as was proper in the circumstances to the fact that the attack on the deceased was the culmination of a sequence of events for starting which the deceased bore some responsibility.

In advancing the appeal the Lord Advocate was, of course, contending that the sentences fall outside the range of sentences which the trial judge, applying his mind to all the relevant factors, could reasonably have considered appropriate (Bell supra at p. 250 D per Lord Justice General Hope). We therefore thought it right to ask the Lord Advocate what he considered was the range below which the trial judge had fallen. The Lord Advocate was initially reluctant to specify a range, but eventually said that in his view the range was 6 to 10 years detention. If that were correct, then it would follow ineluctably that the sentences in this case were unduly lenient. In dealing with this argument I refer also to the full analysis by Lord Bonomy which I have read in draft.

If the Lord Advocate were correct, then in any case where repeated kicking and stamping on the head resulted in death, then no matter what the background to the assault, no matter what the intention of the accused, no matter what the force which the accused used, no matter what the age or previous good conduct of the accused, the minimum sentence would require to be six years. In our view the courts have not approached the matter in that way and the decisions of this court do not support the Lord Advocate's argument that the range of appropriate sentences in cases like this begins at six years.

During the hearing we were referred to two reported Crown appeals involving culpable homicide, H.M.A. v. Gordon 1996 S.C.C.R. 274 and McC supra. In Gordon the accused were men in their twenties both of whom were treated as first offenders. They had been drinking. The incident appears to have begun with the deceased striking Gordon. Gordon and the deceased proceeded to fight and Gordon managed to pin the deceased on the ground. Gordon then stood up and delivered a number of blows by kicking the deceased's head. He also stamped once on his head. The co-accused then became involved and delivered a number of kicks. As a result of these assaults the deceased sustained numerous bruises and other injuries to his face and head, but the only serious injury by way of fracture was to his nose and it was this that led to his death. The Crown accepted that there had been an element of misfortune in the death. There was no other fracture to the face or the skull nor was there any brain damage. The trial judge imposed a sentence of three years imprisonment. In the appeal the Advocate Depute argued that the judge had selected the wrong range of sentence and stressed in particular that any attack which involved kicking and stamping to the head of a man who was lying helpless on the ground was a dangerous attack, as it might well result in very serious injury and perhaps death. She particularly directed her argument to the violent and irresponsible nature of the attack.

In giving the decision of this court, refusing the Crown appeal, Lord Justice General Hope remarked:

As Mr. Jackson, Q.C., pointed out on behalf of Purves, if the Lord Advocate's argument as to the appropriate range of sentences were correct, then Gordon must have been wrongly decided. The Lord Advocate did not ask us to reconsider the reasoning of the court in that decision.

In McC this court quashed the sentence of 18 months detention imposed by the trial judge and substituted a sentence of six years detention on two youths who had been aged 15 and 16 at the time when they committed culpable homicide by punching and kicking. That sentence would therefore be within the range as envisaged by the Lord Advocate. It does not follow, however, that the court considered that the sentence which they imposed was the minimum possible sentence in a case of that kind. They do not, for example, say that if the trial judge had imposed a sentence of four years detention, they would have considered it to be unduly lenient. Moreover, even allowing for the fact that McC did not involve stamping, it is plain that the circumstances of the present case are materially more favourable from the respondents' standpoint than were the circumstances in McC. In particular, in that case it was accepted that the respondents had set upon their victim, a gentleman in his late fifties, for no apparent reason; he had not assaulted any of the respondents. More importantly still, even although the level of violence used was mild to moderate, the blows had resulted in extensive fractures to the bones of the deceased's face and in damage to his spleen. On any view the attack in McC was one which resulted in substantial injuries whereas the attack in the present case did not. In those circumstances, as Mr. Jackson again pointed out, it is hard to see how the sentence of six years selected by this court in McC would be consistent with the Lord Advocate's view that the very minimum sentence in a case of this kind is six years. Again, the Lord Advocate made no criticisms of this court's approach in McC.

For these reasons I reject the Lord Advocate's submission that an offence of this kind must inevitably attract a minimum sentence of six years. Depending on the particular circumstances, a lesser sentence may be appropriate. It is for the sentencing judge to determine the appropriate sentence in the circumstances of any given case.

Finally, the Lord Advocate briefly submitted that the sentences failed to meet the requirements of deterrence. He accepted that it was unlikely that the respondents themselves would offend in the same way again and so no higher sentences were needed to deter them. Rather, he said, higher sentences were needed to deter others throughout Scotland who might commit a similar crime. In his report the trial judge sets out his reasoning on this point:

Beyond the bare submission that the trial judge had given insufficient weight to deterrence the Lord Advocate did not really go. It is plain that the trial judge has carefully considered the issue of deterrence as it applies to the peculiar facts of this case and has come to the view that an exemplary sentence would not have been appropriate. He has set out the reasoning on which he bases that conclusion and in my view nothing which the Lord Advocate said shows that the trial judge was not entitled to reach that conclusion.

Having considered the whole circumstances and all the submissions of the Lord Advocate I have no doubt that, when the test laid down by Parliament is applied, the Crown appeal must fail. In truth this is the kind of case described by the Lord Justice General in Gordon where the selection of the correct sentence is particularly difficult. The trial judge has plainly discharged his duty of considering the sentences with enormous care. Nor can I detect any error of principle in his approach. In particular he specifically took account of the gravity of the offence. Since the trial judge had the great advantage over this court of hearing and considering the evidence, it would be quite inappropriate for me to say anything more than that the sentences which he selected were within the range of possible sentences for this particular crime when committed by youths of the age of the respondents who had previously been of good character. In other words there were factors in this particular case which justified the imposition of these sentences. That being so, they cannot be regarded as unduly lenient. I therefore move your Lordships to refuse the Crown appeal.