Scottish High Court of Justiciary Decisons

PHILIP MULVANNY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 62 (18th May, 2000)

[1] The appellant was born on 10 July 1978. He was indicted and went to trial with another on a number of charges of assault, one of which was a charge of murder. The charges also included a charge of breach of the peace and contravention of the Firearms Act 1968 and of the Bail Etc.(Scotland) Act 1980. The trial took place between 4 and 10 July 1996. At the conclusion of the trial the appellant's co-accused was acquitted of the charges against him. The appellant was found guilty of murder, committed on 19 March 1996, by shooting Andrew Falconer in the head with a sawn-off shotgun. He was also convicted of associated Firearms Act and Bail Act offences. In addition he was found guilty of having assaulted one Gary Walker by striking him on the head with a knife on 2 March 1996. The appellant was sentenced to two years detention in a Young Offenders Institution for the assault and a concurrent sentence of detention with liability to be detained for life on the charge of murder. Although the appellant was remanded in custody on petition on 25 March 1995 and thereafter was in custody until his trial the sentences were not backdated from the date of sentence.

[2] The trial judge describes the assault on 2 March 1996 as having occurred shortly after another individual had been stabbed to the danger of his life in a street in Glasgow. At that time Walker observed the injured man lying in the street and went to investigate. He was then stabbed with a knife several times on the head by the appellant and hit on the neck by another. He sustained superficial lacerations which required stitching.

[3] The murder occurred on 19 March 1996 at about 11.00 p.m. The appellant was in the company of a number of persons in Dean Crescent, Glasgow. Sometime before the victim, Alexander Falconer, had visited Walker in a house nearby. He had left and driven his car to the entrance of a cul-de-sac where the group, including the appellant, was congregated. Falconer alighted from his car. He was then attacked by members of the group. There was a fight between the appellant and Falconer. Walker came to Falconer's assistance. He collected Falconer and started to walk away with him. The trial judge continues as follows:

The trial judge goes on to note that the appellant gave evidence in support of his plea of not guilty to the effect that Falconer attacked him and pulled his T-shirt over his head and that he heard the shot while struggling with Falconer, but did not know who was responsible. It is quite clear from their verdict that the jury disbelieved this account.

[4] The trial judge formed the view from the evidence that the appellant and Falconer had been engaged in a fight against a background of hostility between the members of the group who met in Dean Crescent and persons who were associated with a family called Bruce, who included Falconer and also because the appellant was in a state of excitement and knew that a gun was available to him if he demanded it. The trial judge further noted that there was no evidence which suggested where the gun had come from or for what purpose it was being carried, but it was clear that the appellant himself knew that it was available but did not have it in his possession until he demanded it. The trial judge concluded his report to the parole board as follows:

[5] Following the bringing into force of section 16(2) of the Crime and Punishment (Scotland) Act 1997 the Lord Justice General, on 3 April 1998, certified, for the purposes of that provision, that if section 2 of the Prisoners and Criminal Procedure Act 1993, as amended by the 1997 Act, had been in force at the time when the appellant was sentenced, after taking into account the seriousness of the offence, the trial judge would have ordered that the section should apply to him as soon as he had served 14 years of his sentence. In his certificate the Lord Justice General noted that the appellant was 17 at the time of the offence. He describes the crime as an appalling murder in which the appellant placed a sawn-off shotgun at the head of the deceased and shot him through the head.

[6] Mr. McSherry, for the appellant, submitted that the period selected was excessive. He accepted that at the end of the trial the appellant had been convicted of an assault on 2 March, followed by the assault and murder on 19 March 1996 with the associated Firearms Act and Bail Act offences. As appears in the grounds of appeal he accepted that only a lengthy period of custody should follow upon such a conviction, given the gravity and nature of the crime itself. However he submitted that since the appellant was only 17 at the date of the offence and had no previous convictions for crimes of violence, together with the fact that he had not been the subject of a recommendation in terms of section 205A of the Criminal Procedure (Scotland) Act 1975, there was a ground for holding that the period of 14 years selected was excessive. He drew our attention to the background of hostility narrated in the trial judge's report. He called attention to the fact that there was some dispute as to why the victim, Falconer, had come to leave his car following which a fight between Falconer and the appellant had taken place. He made reference to the description of the manner in which the gun was presented to the victim in the evidence given at the trial. There had been no eye-witness of the murder. The presentation of the weapon had depended upon scientific evidence. He accepted that this was to the effect that powder burns on the victim indicated that the barrel of the gun of the sawn-off shotgun can have been no more than a foot away from the victim's face. He drew attention to the personal circumstances of the appellant at the time, which are narrated in the trial judge's report. He suggested that the appellant's actions had in part been dictated by his youth as the youngest member of a group in which he was attempting to prove himself. He also drew attention to the fact that at the time he was drinking to excess and was addicted to drugs. Mr. McSherry accepted that, as was plain from the jury's verdict, the appellant had told lies in his evidence at the trial.

[7] We are in no doubt that the assessment by the trial judge to the effect that the appellant was, at the time of his trial, an extremely unstable and dangerous criminal was fully justified on the evidence given at the trial. Moreover, we are in no doubt that the Lord Justice General was fully justified, looking to the seriousness of the crime, in describing it as an appalling murder. In these circumstances we can see no reason to regard the period certified for the purposes of section 16 of the 1997 Act as excessive. However, we consider that there is merit in the further ground of appeal, which we allowed to be introduced at the hearing, to the effect that the sentence should be backdated to 25 March 1995. We have allowed the appeal to that extent only.