Scottish High Court of Justiciary Decisons

RICHARD JONES FERGUSON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 63 (18th May, 2000)

[1] The appellant was born on 12 November 1978. He was indicted and went to trial with four others on two charges of assault and robbery and a further charge of assault, robbery and murder. The trial commenced on 26 September 1995. On 27 September 1995 the appellant pleaded guilty to the three charges under certain minor deletions to the two charges of assault and robbery. The appellant pleaded guilty to the charge of assault, robbery and murder as libelled. The charge was that on 1 or 2 June 1995 at Queens Park, Glasgow, he along with his four co-accused assaulted Michael Gerard Doran, chased after him, threw him to the ground, repeatedly struck him on the head with a bottle or similar instrument, repeatedly punched and kicked him on the head and body, repeatedly jumped on his head and body, repeatedly stabbed him on the body with a knife, rifled his pockets and robbed him of a jacket and a quantity of money and Michael Gerard Doran was severely injured and died on 2 June 1995 at the Southern General Hospital, Glasgow, as a result thereof and did murder him.

[2] On 3 October 1995 at the conclusion of the trial, the appellant was sentenced to be detained in a Young Offenders Institution without limit of time. This was a cumulo sentence in respect of the three charges. Although the appellant had been remanded in custody on 5 June 1995 and had remained in custody thereafter to await trial, the sentence was not backdated to 5 June 1995.

[3] Of the remaining accused, the first, Richard Martin Bell, born on 19 October 1974, pleaded guilty to all three charges under certain deletions including the use of a knife in the charge of murder, on 28 September 1995. The second, John Cairns, born on 13 January 1977, was convicted by the verdict of the jury of all three charges as libelled subject to a minor deletion in one charge of assault and robbery. The third, James Alexander Peter Knox, born on 19 September 1975, pleaded guilty to one charge of assault and robbery. The last, Claire Jane Codona, born on 3 March 1981, was convicted by the verdict of the jury on the charge of murder as libelled.

[4] In his report for the parole board prepared at the conclusion of the trial, the trial judge describes the deletions which were made to the charges to which the appellant pleaded guilty as not being of any significance. The three assaults and robberies were committed during the course of the late evening of Thursday 1 June 1995, between about 10.30 p.m. and shortly after midnight. The appellant, with Bell, Cairns and Codona, were together in Queens Park. A part of it was frequented by homosexuals looking for meetings with other homosexuals. Each victim in the three charges was approached by a member of the group and asked for a cigarette. In the first incident the assault started with the appellant threatening the victim with a knife. In the second assault the victim was carrying a knife for his own protection. He attempted to use it to defend himself when he was assaulted but had it taken from him and was struck with it. The victim in the last charge, that of murder, was the subject of a chase before he was assaulted and robbed. During the course of the assault he was stabbed three times in the scrotum by the knife taken from the second victim. The trial judge goes on to say this:

The victim was left unconscious in the park and found by a police officer some time later at about 1.30 a.m. In the meanwhile, about 12.30 a.m., the appellant, Bell, Cairns and Codona had been seen walking near the park by the same police officer. The three males ran away. Codona was taken home in a police vehicle. The appellant, Bell and Cairns next went to a party taking place nearby. There they spoke about what had happened and referred to the victims as "poofs". Later on the same day the appellant, probably accompanied by Bell and Cairns, sold to a jeweller a wedding ring taken from the second victim. All four male accused were detained by police officers on 3 June 1995. Each made a detailed statement about what had occurred in the park.

[5] The trial judge goes on to relate that he had considered making a recommendation in terms of section 205A of the Criminal Procedure (Scotland) Act 1975 in relation to the appellant, Bell and Cairns in view of the horrific and grave nature of the murder. He said that in view of the ages of the three youths and their lack of serious previous convictions he had given effect to submissions that in each case it was more appropriate that the authorities dealing with the matter should consider and determine the date of their release and that a recommendation might prejudice that consideration. He did so in spite of his view as to the nature of the crime which they had committed.

[6] Following the bringing into force of section 16(2) of the Crime and Punishment (Scotland) Act 1997 the Lord Justice Clerk, on 6 November 1997, certified for the purposes of that provision that if section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 1997 Act, had been in force at the time when the appellant was sentenced, the court by which he was sentenced, after taking into account the seriousness of the offence, would have ordered that that section should apply to him as soon as he had served 14 years of his sentence. It is against that determination that the present appeal has been taken.

[7] At the hearing of the appeal Mr. Duguid submitted in the first place that the cumulo sentence should have been backdated to the date of the appellant's first appearance on petition. He did so under reference to the cases of Elliot v. H.M. Advocate and Murray and Hartley v. H.M. Advocate. He then submitted that the period selected by the Lord Justice Clerk was excessive. The appellant was the youngest of the three males convicted of all three charges. He had been prepared to plead guilty on the first day of the trial, following an interview with his father. His willingness to plead guilty had been notified to the Crown at the time but acceptance of it, and thus formal intimation of it to the court, was delayed because the Crown wished, before accepting it, to place before the jury the transcript of the interview with the appellant and to play the tape of that interview to the jury. In it the appellant stated that it was Cairns who had used the knife to stab the murder victim. Mr. Duguid went on to accept that the crime to which the appellant had pleaded guilty was as described by the trial judge as horrific and grave. Nevertheless by his plea to the charges, and in particular to the murder charge as libelled, he had accepted responsibility for these crimes. Counsel pointed out that it appeared from the terms of the Lord Justice Clerk's report that one of the factors that had weighed with him was that the appellant had used the knife in the course of the assault on the murdered man, whereas it was Cairns who had actually stabbed the victim. In the trial judge's report it was noted that, notwithstanding Cairns' statement to the police that the appellant had stabbed the victim and that Cairns thereafter took the knife from him and threw it away, Cairns had been found guilty of the charge as libelled. It had been the appellant's position in the course of his interview that it was Cairns who had actually stabbed the victim. Counsel went on to argue that in the context of the trial in which others were charged with the appellant and indeed had proceeded to trial, some proper account required to be taken of his early plea. This was a factor which fell to be given some weight in terms of section 2(2)(c) of the 1993 Act as amended. It was also pertinent that no recommendation had been made at the time in relation to the appellant. In so far as other cases could provide a guide, counsel drew our attention to the decision in Murray and Hartley v. H.M. Advocate where there had been a reduction made on appeal in the periods certified and in which the circumstances of the appellants there were similar to the present. Counsel also made passing reference to the fourth ground of appeal. This alleged a breach of the terms of Article 6 of the European Convention on Human Rights in that the effect of the certificate was to constitute the period specified as part of the sentence imposed by the trial judge. It was to be regarded, accordingly, as part of the trial proceedings. Yet the appellant was neither present nor represented and thus was not able to make representations upon the duration of any period to be specified in advance of the determination of the Lord Justice Clerk. However, this point was not further pursued and we have not required to consider it further in this appeal.

[8] We have had the advantage of considering the report by the Lord Justice Clerk in relation to the factors which he took into account in determining upon the period of 14 years and further his comments on the grounds of appeal. In the report he sets out the important factors which influenced his view concerning the seriousness of the offence. He noted the deliberate nature of the expedition to assault and rob homosexuals and the circumstances of each of the crimes charged. This is undoubtedly a factor of very material weight. He next founded on the statement by the trial judge that it was the appellant who stabbed the murder victim. There is an ambiguity in the trial judge's report on this matter. It may well be that Cairns held the knife and used it to strike the victim. However, we do not consider the criticisms made in this matter by counsel to be a factor of any real moment. Both the appellant and Cairns, unlike Bell, were convicted on a libel containing reference to the use of the knife. In the context of the assault as a whole this factor was of lesser materiality than the appellant's participation with his co-accused in an extended assault upon the murdered victim. The final factor which weighed with the Lord Justice Clerk was the trial judge's statement concerning the absence of remorse on the part of the appellant and his co-accused after the event and in the course of statements made to the police. In this matter the Lord Justice Clerk did not, for the reasons stated by him, apply his mind at the time of granting the certificate to the terms of section 2(2)(c) of the 1993 Act as amended. He states in his report, however, that he would not have considered that this matter was a factor of significance in the present case in view of the fact that the appellant's pleas of guilty were not tendered until the second day of the trial. Having had the advantage of a much fuller explanation of how the plea came to be tendered, one which was not available to the Lord Justice Clerk at the time of granting the certificate, we consider that this was a matter of importance in the present case which properly fell to be taken into account in assessing the period to be served before the appellant acquired the right to have his application for release on licence referred to the parole board. This also bears upon the issue of his attitude to the crimes committed by him and his acceptance of responsibility for actions which, at the time, did not appear to have affected him. This is a factor too which requires to be assessed along with his youth and, more particularly, his age as compared with his co-accused. Taking into account all these matters we consider that in the light of the further material placed before us on behalf of the appellant that the period selected by the Lord Justice Clerk can be said to be excessive. We have therefore substituted the period of 12 years for that certified by the Lord Justice Clerk and, at the same time, we have provided that the sentence is backdated to 5 June 1995.